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Imbong vs Ochoa
JAMES M. IMBONG AND LOVELY-ANN C. IMBONG, for themselves and in
behalf of their minor children, LUCIA CARLOS IMBONG and BERNADETTE
CARLOS IMBONG and MAGNIFICAT CHILD DEVELOPMENT CENTER,
INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., EXECUTIVE Secretary, HON. FLORENCIO
B. ABAD, Secretary, Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of Education, Culture and Sports
and HON. MANUEL A. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
G.R. No. 204819 April 8, 2014
FACTS:
Shortly after the President placed his imprimatur on Republic Act (R.A.) No. 10354,
otherwise known as the Responsible Parenthood and Reproductive Health Act of 2012
(RH Law), challengers from various sectors of society came knocking on the doors of the
Court, beckoning it to wield the sword that strikes down constitutional disobedience.
Aware of the profound and lasting impact that its decision may produce, the Court now
faces the controversy, as presented in fourteen (14) petitions and two (2) petitions-inintervention.
The petitioners are one in praying that the entire RH Law be declared
unconstitutional.
ISSUES:
After a scrutiny of the various arguments and contentions of the parties, the Court has
synthesized and refined them to the following principal issues:
1. PROCEDURAL: Whether the Court may exercise its power of judicial review over the
controversy.
1. Power of Judicial Review
2. Actual Case or Controversy
3. Facial Challenge
4. Locus Standi
5. Declaratory Relief
6. One Subject/One Title Rule
2. SUBSTANTIVE: Whether the RH law is unconstitutional:
1. Right to Life
2. Right to Health
3. Freedom of Religion and the Right to Free Speech
4. The Family
5. Freedom of Expression and Academic Freedom
6. Due Process
7. Equal Protection
8. Involuntary Servitude
9. Delegation of Authority to the FDA
10. Autonomy of Local Governments / ARMM
RULING:
1. Before delving into the constitutionality of the RH Law and its implementing rules, it
behooves the Court to resolve some procedural impediments.
1. The petition no doubt raises a justiciable controversy. Where an action of the
legislative branch is seriously alleged to have infringed the Constitution, it
becomes not only the right but in fact the duty of the judiciary to settle the
dispute. “The question thus posed is judicial rather than political. The duty (to
adjudicate) remains to assure that the supremacy of the Constitution is upheld. Once
a controversy as to the application or interpretation of constitutional provision is raised
before this Court (as in the instant case), it becomes a legal issue which the Court is
bound by constitutional mandate to decide. In the scholarly estimation of former
Supreme Court Justice Florentino Feliciano, “judicial review is essential for the
maintenance and enforcement of the separation of powers and the balancing of
powers among the three great departments of government through the definition and
maintenance of the boundaries of authority and control between them.” To
him, judicial review is the chief, indeed the only, medium of participation – or
instrument of intervention – of the judiciary in that balancing operation. Lest it
be misunderstood, it bears emphasizing that the Court does not have the unbridled
authority to rule on just any and every claim of constitutional violation. Jurisprudence
is replete with the rule that the power of judicial review is limited by four exacting
requisites, viz : (a) there must be an actual case or controversy; (b) the petitioners
must possess locus standi; (c) the question of constitutionality must be raised at the
earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the
case.
2. Even a singular violation of the Constitution and/or the law is enough to awaken
judicial duty. In this case, the Court is of the view that an actual case or controversy
exists and that the same is ripe for judicial determination. Considering that the RH
Law and its implementing rules have already taken effect and that budgetary
measures to carry out the law have already been passed, it is evident that the subject
petitions present a justiciable controversy. When an action of the legislative branch is
seriously alleged to have infringed the Constitution, it not only becomes a right, but
also a duty of the Judiciary to settle the dispute.
3. The Court is not persuaded. In United States (US) constitutional law, a facial
challenge, also known as a First Amendment Challenge, is one that is launched to
assail the validity of statutes concerning not only protected speech, but also all other
rights in the First Amendment. These include religious freedom, freedom of the press,
and the right of the people to peaceably assemble, and to petition the Government for
a redress of grievances. After all, the fundamental right to religious freedom, freedom
of the press and peaceful assembly are but component rights of the right to one’s
freedom of expression, as they are modes which one’s thoughts are externalized. In
this jurisdiction, the application of doctrines originating from the U.S. has been
generally maintained, albeit with some modifications. While this Court has withheld
the application of facial challenges to strictly penal statues, it has expanded its scope
to cover statutes not only regulating free speech, but also those involving religious
freedom, and other fundamental rights. Verily, the framers of Our Constitution
envisioned a proactive Judiciary, ever vigilant with its duty to maintain the
supremacy of the Constitution.
4. The transcendental importance of the issues involved in this case warrants that we
set aside the technical defects and take primary jurisdiction over the petition at bar.
One cannot deny that the issues raised herein have potentially pervasive influence on
the social and moral well being of this nation, specially the youth; hence, their proper
and just determination is an imperative need. This is in accordance with the wellentrenched principle that rules of procedure are not inflexible tools designed to
hinder or delay, but to facilitate and promote the administration of justice. Their
strict and rigid application, which would result in technicalities that tend to
frustrate, rather than promote substantial justice, must always be
eschewed. Considering that it is the right to life of the mother and the unborn which
is primarily at issue, the Court need not wait for a life to be taken away before taking
action.
5. Where the case has far-reaching implications and prays for injunctive reliefs, the Court
may consider them as petitions for prohibition under Rule 65.
6. The RH Law does not violate the one subject/one bill rule. It is well-settled that
the “one title-one subject” rule does not require the Congress to employ in the title
of the enactment language of such precision as to mirror, fully index or catalogue all
the contents and the minute details therein. The rule is sufficiently complied with if the
title is comprehensive enough as to include the general object which the statute seeks
to effect, and where, as here, the persons interested are informed of the nature, scope
and consequences of the proposed law and its operation. Moreover, this Court has
invariably adopted a liberal rather than technical construction of the rule “so as not to
cripple or impede legislation.” In this case, a textual analysis of the various provisions
of the law shows that both “reproductive health” and “responsible parenthood” are
interrelated and germane to the overriding objective to control the population growth.
2. SUBSTANTIVE ISSUES:
1. The Court cannot subscribe to the theory advocated by Hon. Lagman that life begins
at implantation. According to him, “fertilization and conception are two distinct and
successive stages in the reproductive process. They are not identical and
synonymous.” Citing a letter of the WHO, he wrote that medical authorities confirm
that the implantation of the fertilized ovum is the commencement of conception and it
is only after implantation that pregnancy can be medically detected. This theory of
implantation as the beginning of life is devoid of any legal or scientific mooring. It does
not pertain to the beginning of life but to the viability of the fetus. The fertilized
ovum/zygote is not an inanimate object – it is a living human being complete with DNA
and 46 chromosomes. Implantation has been conceptualized only for convenience by
those who had population control in mind. To adopt it would constitute textual infidelity
not only to the RH Law but also to the Constitution. It is the Court’s position that life
begins at fertilization, not at implantation. When a fertilized ovum is implanted
in the uterine wall, its viability is sustained but that instance of implantation is
not the point of beginning of life.
2. A component to the right to life is the constitutional right to health. In this regard, the
Constitution is replete with provisions protecting and promoting the right to health.
These provisions are self-executing. Unless the provisions clearly express the
contrary, the provisions of the Constitution should be considered self-executory. There
is no need for legislation to implement these self-executing provisions. In Manila
Prince Hotel v. GSIS, it was stated:
1. x x x Hence, unless it is expressly provided that a legislative act is necessary to
enforce a constitutional mandate, the presumption now is that all provisions of the
constitution are self-executing. If the constitutional provisions are treated as
requiring legislation instead of self-executing, the legislature would have the
power to ignore and practically nullify the mandate of the fundamental law.
This can be cataclysmic. That is why the prevailing view is, as it has always been,
that –… in case of doubt, the Constitution should be considered self-executing
rather than non-self-executing. . . .
2. Unless the contrary is clearly intended, the provisions of the Constitution should
be considered self-executing, as a contrary rule would give the legislature
discretion to determine when, or whether, they shall be effective. These provisions
would be subordinated to the will of the lawmaking body, which could make them
entirely meaningless by simply refusing to pass the needed implementing statute.
3. It is not within the province of the Court to determine whether the use of contraceptives
or one’s participation in the support of modem reproductive health measures is moral
from a religious standpoint or whether the same is right or wrong according to one’s
dogma or belief. For the Court has declared that matters dealing with “faith,
practice, doctrine, form of worship, ecclesiastical law, custom and rule of a
church … are unquestionably ecclesiastical matters which are outside the
province of the civil courts.” The jurisdiction of the Court extends only to public
and secular morality. Whatever pronouncement the Court makes in the case at
bench should be understood only in this realm where it has authority. Stated
otherwise, while the Court stands without authority to rule on ecclesiastical matters,
as vanguard of the Constitution, it does have authority to determine whether the RH
Law contravenes the guarantee of religious freedom. Consequently, the petitioners
are misguided in their supposition that the State cannot enhance its population control
program through the RH Law simply because the promotion of contraceptive use is
contrary to their religious beliefs. Indeed, the State is not precluded to pursue its
legitimate secular objectives without being dictated upon by the policies of any one
religion. One cannot refuse to pay his taxes simply because it will cloud his
conscience. The demarcation line between Church and State demands that one
render unto Caesar the things that are Caesar’s and unto God the things that
are God’s. The Court is of the view that the obligation to refer imposed by the RH Law
violates the religious belief and conviction of a conscientious objector. Once the
medical practitioner, against his will, refers a patient seeking information on modem
reproductive health products, services, procedures and methods, his conscience is
immediately burdened as he has been compelled to perform an act against his beliefs.
As Commissioner Joaquin A. Bernas (Commissioner Bernas) has written, “at the basis
of the free exercise clause is the respect for the inviolability of the human conscience.
1. The Court is of the strong view that the religious freedom of health providers,
whether public or private, should be accorded primacy. Accordingly, a
conscientious objector should be exempt from compliance with the mandates of
the RH Law. If he would be compelled to act contrary to his religious belief and
conviction, it would be violative of “the principle of non-coercion” enshrined in the
constitutional right to free exercise of religion.
2. The same holds true with respect to non-maternity specialty hospitals and
hospitals owned and operated by a religious group and health care service
providers. Considering that Section 24 of the RH Law penalizes such institutions
should they fail or refuse to comply with their duty to refer under Section 7 and
Section 23(a)(3), the Court deems that it must be struck down for being violative
of the freedom of religion.
3. The same applies to Section 23(a)(l) and (a)(2) in relation to Section 24,
considering that in the dissemination of information regarding programs and
services and in the performance of reproductive health procedures, the religious
freedom of health care service providers should be respected. The punishment of
a healthcare service provider, who fails and/or refuses to refer a patient to another,
or who declines to perform reproductive health procedure on a patient because
incompatible religious beliefs, is a clear inhibition of a constitutional guarantee
which the Court cannot allow.
4. The State cannot, without a compelling state interest, take over the role of parents in
the care and custody of a minor child, whether or not the latter is already a parent or
has had a miscarriage. Only a compelling state interest can justify a state
substitution of their parental authority.
5. Any attack on the validity of Section 14 of the RH Law is prematurebecause the
Department of Education, Culture and Sports has yet to formulate a curriculum on
age-appropriate reproductive health education. One can only speculate on the
content, manner and medium of instruction that will be used to educate the
adolescents and whether they will contradict the religious beliefs of the petitioners and
validate their apprehensions. Thus, considering the premature nature of this particular
issue, the Court declines to rule on its constitutionality or validity.
6. A statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must necessarily
guess its meaning and differ as to its application. It is repugnant to the Constitution
in two respects: (1) it violates due process for failure to accord persons, especially the
parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers
unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of
the Government muscle. Moreover, in determining whether the words used in a statute
are vague, words must not only be taken in accordance with their plain meaning alone,
but also in relation to other parts of the statute. It is a rule that every part of the statute
must be interpreted with reference to the context, that is, every part of it must be
construed together with the other parts and kept subservient to the general intent of
the whole enactment.
7. To provide that the poor are to be given priority in the government’s reproductive
health care program is not a violation of the equal protection clause. In fact, it is
pursuant to Section 11, Article XIII of the Constitution which recognizes the distinct
necessity to address the needs of the underprivileged by providing that they be given
priority in addressing the health development of the people. Thus: Section 11. The
State shall adopt an integrated and comprehensive approach to health development
which shall endeavor to make essential goods, health and other social services
available to all the people at affordable cost. There shall be priority for the needs of
the underprivileged, sick, elderly, disabled, women, and children. The State shall
endeavor to provide free medical care to paupers. It should be noted that Section 7 of
the RH Law prioritizes poor and marginalized couples who are suffering from fertility
issues and desire to have children. There is, therefore, no merit to the contention
that the RH Law only seeks to target the poor to reduce their number. While the
RH Law admits the use of contraceptives, it does not, as elucidated above, sanction
abortion. As Section 3(1) explains, the “promotion and/or stabilization of the population
growth rate is incidental to the advancement of reproductive health.”
8. The notion of involuntary servitude connotes the presence of force, threats,
intimidation or other similar means of coercion and compulsion. A reading of the
assailed provision, however, reveals that it only encourages private and nongovernment reproductive healthcare service providers to render pro bono service.
Other than non-accreditation with PhilHealth, no penalty is imposed should they
choose to do otherwise. Private and non-government reproductive healthcare service
providers also enjoy the liberty to choose which kind of health service they wish to
provide, when, where and how to provide it or whether to provide it all. Clearly,
therefore, no compulsion, force or threat is made upon them to render pro bono
service against their will. While the rendering of such service was made a
prerequisite to accreditation with PhilHealth, the Court does not consider the same
to be an unreasonable burden, but rather, a necessary incentive imposed by
Congress in the furtherance of a perceived legitimate state interest. Consistent
with what the Court had earlier discussed, however, it should be emphasized that
conscientious objectors are exempt from this provision as long as their religious beliefs
and convictions do not allow them to render reproductive health service, pro bona or
otherwise.
9. The Court finds nothing wrong with the delegation. The FDA does not only have the
power but also the competency to evaluate, register and cover health services and
methods. It is the only government entity empowered to render such services and
highly proficient to do so. It should be understood that health services and methods
fall under the gamut of terms that are associated with what is ordinarily understood as
“health products.” Being the country’s premiere and sole agency that ensures the
safety of food and medicines available to the public, the FDA was equipped with
the necessary powers and functions to make it effective. Pursuant to the principle
of necessary implication, the mandate by Congress to the FDA to ensure public health
and safety by permitting only food and medicines that are safe includes “service” and
“methods.” From the declared policy of the RH Law, it is clear that Congress intended
that the public be given only those medicines that are proven medically safe, legal,
non-abortifacient, and effective in accordance with scientific and evidence-based
medical research standards. The philosophy behind the permitted delegation was
explained in Echagaray v. Secretary of Justice, as follows:
1. The reason is the increasing complexity of the task of the government and the
growing inability of the legislature to cope directly with the many problems
demanding its attention. The growth of society has ramified its activities and
created peculiar and sophisticated problems that the legislature cannot be
expected reasonably to comprehend. Specialization even in legislation has
become necessary. To many of the problems attendant upon present day
undertakings, the legislature may not have the competence, let alone the interest
and the time, to provide the required direct and efficacious, not to say specific
solutions.
10. A reading of the RH Law clearly shows that whether it pertains to the establishment
of health care facilities, the hiring of skilled health professionals, or the training of
barangay health workers, it will be the national government that will provide for the
funding of its implementation. Local autonomy is not absolute. The national
government still has the say when it comes to national priority programs which the
local government is called upon to implement like the RH Law.
FACTS:
On December 21, 2012, RA No. 10354 otherwise known as the Responsible Parenthood and
Reproductive Health Act of 2012.
The Reproductive Health Law is a consolidation and enhancement of existing reproductive laws. It seeks
to enhance the population control program of the government in order to promote public welfare.
However, when coercive measures are found within the law, provisions must be removed or altered in
order to ensure that it does not defy the Constitution by infringing on the rights of the people.
Shortly after the President placed his imprimatur on Republic Act (R.A.) No. 10354, otherwise
known as the Responsible Parenthood and Reproductive Health Act of 2012 (RH Law), challengers from
various sectors of society came knocking on the doors of the Court, beckoning it to wield the sword that
strikes down constitutional disobedience. Aware of the profound and lasting impact that its decision
may produce, the Court now faces the controversy, as presented in fourteen (14) petitions and two (2)
petitions-in-intervention.
The petitioners are one in praying that the entire RH Law be declared unconstitutional.
Discussions:
PROCEDURAL
Judicial Review Jurisprudence is replete with the rule that the power of judicial review is limited by four
exacting requisites:
(a) there must be an actual case or controversy;
(b) the petitioners must possess locus standi;
(c) the question of constitutionality must be raised at the earliest opportunity; and
(d) the issue of constitutionality must be the lis mota of the case.
Actual Controversy: An actual case or controversy means an existing case or controversy that is
appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of the court
would amount to an advisory opinion. It must concern a real, tangible and not merely a theoretical
question or issue. There ought to be an actual and substantial controversy admitting of specific relief
through a decree conclusive in nature, as distinguished from an opinion advising what the law would be
upon a hypothetical state of facts. Corollary to the requirement of an actual case or controversy is the
requirement of ripeness. A question is ripe for adjudication when the act being challenged has had a
direct adverse effect on the individual challenging it. For a case to be considered ripe for adjudication, it
is a prerequisite that something has then been accomplished or performed by either branch before a
court may come into the picture, and the petitioner must allege the existence of an immediate or
threatened injury to himself as a result of the challenged action. He must show that he has sustained or
is immediately in danger of sustaining some direct injury as a result of the act complained of
Facial Challenge: A facial challenge, also known as a First Amendment Challenge, is one that is launched
to assail the validity of statutes concerning not only protected speech, but also all other rights in the
First Amendment. These include religious freedom, freedom of the press, and the right of the people to
peaceably assemble, and to petition the Government for a redress of grievances. After all, the
fundamental right to religious freedom, freedom of the press and peaceful assembly are but component
rights of the right to one’s freedom of expression, as they are modes which one’s thoughts are
externalized.
Locus Standi: Locus standi or legal standing is defined as a personal and substantial interest in a case
such that the party has sustained or will sustain direct injury as a result of the challenged governmental
act. It requires a personal stake in the outcome of the controversy as to assure the concrete adverseness
which sharpens the presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions.
Transcendental Importance: the Court leans on the doctrine that “the rule on standing is a matter of
procedure, hence, can be relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers, and
legislators when the public interest so requires, such as when the matter is of transcendental
importance, of overreaching significance to society, or of paramount public interest.”
One Subject-One Title: The “one title-one subject” rule does not require the Congress to employ in the
title of the enactment language of such precision as to mirror, fully index or catalogue all the contents
and the minute details therein. The rule is sufficiently complied with if the title is comprehensive enough
as to include the general object which the statute seeks to effect, and where, as here, the persons
interested are informed of the nature, scope and consequences of the proposed law and its operation.
Moreover, this Court has invariably adopted a liberal rather than technical construction of the rule “so
as not to cripple or impede legislation.” The one subject/one title rule expresses the principle that the
title of a law must not be “so uncertain that the average person reading it would not be informed of the
purpose of the enactment or put on inquiry as to its contents, or which is misleading, either in referring
to or indicating one subject where another or different one is really embraced in the act, or in omitting
any expression or indication of the real subject or scope of the act.”
Declaration of Unconstitutionality: Orthodox view: An unconstitutional act is not a law; it confers no
rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as
inoperative as though it had never been passed. Modern view: Under this view, the court in passing
upon the question of constitutionality does not annul or repeal the statute if it finds it in conflict with
the Constitution. It simply refuses to recognize it and determines the rights of the parties just as if such
statute had no existence. But certain legal effects of the statute prior to its declaration of
unconstitutionality may be recognized. Requisites for partial unconstitutionality: (1) The Legislature
must be willing to retain the valid portion(s), usually shown by the presence of a separability clause in
the law; and (2) The valid portion can stand independently as law.
Ruling/s:
SUBSTANTIAL
Majority of the Members of the Court believe that the question of when life begins is a scientific and
medical issue that should not be decided, at this stage, without proper hearing and evidence. However,
they agreed that individual Members could express their own views on this matter.
Article II, Section 12 of the Constitution states: “The State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic autonomous social institution. It shall equally protect the
life of the mother and the life of the unborn from conception.”
In its plain and ordinary meaning (a canon in statutory construction), the traditional meaning of
“conception” according to reputable dictionaries cited by the ponente is that life begins at fertilization.
Medical sources also support the view that conception begins at fertilization.
The framers of the Constitution also intended for (a) “conception” to refer to the moment of
“fertilization” and (b) the protection of the unborn child upon fertilization. In addition, they did not
intend to ban all contraceptives for being unconstitutional; only those that kill or destroy the fertilized
ovum would be prohibited. Contraceptives that actually prevent the union of the male sperm and
female ovum, and those that similarly take action before fertilization should be deemed non-abortive,
and thus constitutionally permissible.
The intent of the framers of the Constitution for protecting the life of the unborn child was to prevent
the Legislature from passing a measure prevent abortion. The Court cannot interpret this otherwise. The
RH Law is in line with this intent and actually prohibits abortion. By using the word “or” in defining
abortifacient (Section 4(a)), the RH Law prohibits not only drugs or devices that prevent implantation
but also those that induce abortion and induce the destruction of a fetus inside the mother’s womb. The
RH Law recognizes that the fertilized ovum already has life and that the State has a bounded duty to
protect it.
However, the authors of the IRR gravely abused their office when they redefined the meaning of
abortifacient by using the term “primarily”. Recognizing as abortifacients only those that “primarily
induce abortion or the destruction of a fetus inside the mother’s womb or the prevention of the
fertilized ovum to reach and be implanted in the mother’s womb” (Sec. 3.01(a) of the IRR) would pave
the way for the approval of contraceptives that may harm or destroy the life of the unborn from
conception/fertilization. This violates Section 12, Article II of the Constitution. For the same reason, the
definition of contraceptives under the IRR (Sec 3.01(j)), which also uses the term “primarily”, must be
struck down.
The RH Law does not intend to do away with RA 4729 (1966). With RA 4729 in place, the Court believes
adequate safeguards exist to ensure that only safe contraceptives are made available to the public. In
fulfilling its mandate under Sec. 10 of the RH Law, the DOH must keep in mind the provisions of RA
4729: the contraceptives it will procure shall be from a duly licensed drug store or pharmaceutical
company and that the actual distribution of these contraceptive drugs and devices will be done
following a prescription of a qualified medical practitioner.
Meanwhile, the requirement of Section 9 of the RH Law is to be considered “mandatory” only after
these devices and materials have been tested, evaluated and approved by the FDA. Congress cannot
determine that contraceptives are “safe, legal, non-abortificient and effective”.
The Court cannot determine whether or not the use of contraceptives or participation in support of
modern RH measures (a) is moral from a religious standpoint; or, (b) right or wrong according to one’s
dogma or belief. However, the Court has the authority to determine whether or not the RH Law
contravenes the Constitutional guarantee of religious freedom.
The State may pursue its legitimate secular objectives without being dictated upon the policies of any
one religion. To allow religious sects to dictate policy or restrict other groups would violate Article III,
Section 5 of the Constitution or the Establishment Clause. This would cause the State to adhere to a
particular religion, and thus, establishes a state religion. Thus, the State can enhance its population
control program through the RH Law even if the promotion of contraceptive use is contrary to the
religious beliefs of e.g. the petitioners.
Section 23A (2)(i) of the RH Law, which permits RH procedures even with only the consent of the spouse
undergoing the provision (disregarding spousal content), intrudes into martial privacy and autonomy
and goes against the constitutional safeguards for the family as the basic social institution. Particularly,
Section 3, Article XV of the Constitution mandates the State to defend: (a) the right of spouses to found
a family in accordance with their religious convictions and the demands of responsible parenthood and
(b) the right of families or family associations to participate in the planning and implementation of
policies and programs that affect them. The RH Law cannot infringe upon this mutual decision-making,
and endanger the institutions of marriage and the family.
The exclusion of parental consent in cases where a minor undergoing a procedure is already a parent or
has had a miscarriage (Section 7 of the RH Law) is also anti-family and violates Article II, Section 12 of
the Constitution, which states: “The natural and primary right and duty of parents in the rearing of the
youth for civic efficiency and the development of moral character shall receive the support of the
Government.” In addition, the portion of Section 23(a)(ii) which reads “in the case of minors, the written
consent of parents or legal guardian or, in their absence, persons exercising parental authority or nextof-kin shall be required only in elective surgical procedures” is invalid as it denies the right of parental
authority in cases where what is involved is “non-surgical procedures.”
However, a minor may receive information (as opposed to procedures) about family planning services.
Parents are not deprived of parental guidance and control over their minor child in this situation and
may assist her in deciding whether to accept or reject the inf
ormation received. In addition,
an exception may be made in life-threatening procedures.
The Court declined to rule on the constitutionality of Section 14 of the RH Law, which mandates the
State to provide Age-and Development-Appropriate Reproductive Health Education. Although educators
might raise their objection to their participation in the RH education program, the Court reserves its
judgment should an actual case be filed before it.
Any attack on its constitutionality is premature because the Department of Education has not yet
formulated a curriculum on age-appropriate reproductive health education.
Section 12, Article II of the Constitution places more importance on the role of parents in the
development of their children with the use of the term “primary”. The right of parents in upbringing
their youth is superior to that of the State.
The provisions of Section 14 of the RH Law and corresponding provisions of the IRR supplement (rather
than supplant) the right and duties of the parents in the moral development of their children.
By incorporating parent-teacher-community associations, school officials, and other interest groups in
developing the mandatory RH program, it could very well be said that the program will be in line with
the religious beliefs of the petitioners.
The RH Law does not violate the due process clause of the Constitution as the definitions of several
terms as observed by the petitioners are not vague.
The definition of “private health care service provider” must be seen in relation to Section 4(n) of the RH
Law which defines a “public health service provider”. The “private health care institution” cited under
Section 7 should be seen as synonymous to “private health care service provider.
The terms “service” and “methods” are also broad enough to include providing of information and
rendering of medical procedures. Thus, hospitals operated by religious groups are exempted from
rendering RH service and modern family planning methods (as provided for by Section 7 of the RH Law)
as well as from giving RH information and procedures.
The RH Law also defines “incorrect information”. Used together in relation to Section 23 (a)(1), the
terms “incorrect” and “knowingly” connote a sense of malice and ill motive to mislead or misrepresent
the public as to the nature and effect of programs and services on reproductive health.
To provide that the poor are to be given priority in the government’s RH program is not a violation of
the equal protection clause. In fact, it is pursuant to Section 11, Article XIII of the Constitution, which
states that the State shall prioritize the needs of the underprivileged, sick elderly, disabled, women, and
children and that it shall endeavor to provide medical care to paupers.
The RH Law does not only seek to target the poor to reduce their number, since Section 7 of the RH Law
prioritizes poor and marginalized couples who are suffering from fertility issues and desire to have
children. In addition, the RH Law does not prescribe the number of children a couple may have and does
not impose conditions upon couples who intend to have children. The RH Law only seeks to provide
priority to the poor.
The exclusion of private educational institutions from the mandatory RH education program under
Section 14 is valid. There is a need to recognize the academic freedom of private educational institutions
especially with respect to religious instruction and to consider their sensitivity towards the teaching of
reproductive health education
The requirement under Sec. 17 of the RH Law for private and non-government health care service
providers to render 48 hours of pro bonoRH services does not amount to involuntary servitude, for two
reasons. First, the practice of medicine is undeniably imbued with public interest that it is both the
power and a duty of the State to control and regulate it in order to protect and promote the public
welfare. Second, Section 17 only encourages private and non-government RH service providers to
render pro bono Besides the PhilHealth accreditation, no penalty is imposed should they do otherwise.
However, conscientious objectors are exempt from Sec. 17 as long as their religious beliefs do not allow
them to render RH service, pro bono or otherwise
PROCEDURAL
In this case, the Court is of the view that an actual case or controversy exists and that the same is ripe
for judicial determination. Considering that the RH Law and its implementing rules have already taken
effect and that budgetary measures to carry out the law have already been passed, it is evident that the
subject petitions present a justiciable controversy. As stated earlier, when an action of the legislative
branch is seriously alleged to have infringed the Constitution, it not only becomes a right, but also a duty
of the Judiciary to settle the dispute.
Moreover, the petitioners have shown that the case is so because medical practitioners or medical
providers are in danger of being criminally prosecuted under the RH Law for vague violations thereof,
particularly public health officers who are threatened to be dismissed from the service with forfeiture of
retirement and other benefits. They must, at least, be heard on the matter now.
In this jurisdiction, the application of doctrines originating from the U.S. has been generally maintained,
albeit with some modifications. While the Court has withheld the application of facial challenges to
strictly penal statues, it has expanded its scope to cover statutes not only regulating free speech, but
also those involving religious freedom, and other fundamental rights. The underlying reason for this
modification is simple. For unlike its counterpart in the U.S., this Court, under its expanded jurisdiction,
is mandated by the Fundamental Law not only to settle actual controversies involving rights which are
legally demandable and enforceable, but also to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. Verily, the framers of Our Constitution envisioned a proactive
Judiciary, ever vigilant with its duty to maintain the supremacy of the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged that the constitutional
human rights to life, speech and religion and other fundamental rights mentioned above have been
violated by the assailed legislation, the Court has authority to take cognizance of these kindred petitions
and to determine if the RH Law can indeed pass constitutional scrutiny. To dismiss these petitions on the
simple expedient that there exist no actual case or controversy, would diminish this Court as a reactive
branch of government, acting only when the Fundamental Law has been transgressed, to the detriment
of the Filipino people.
Even if the constitutionality of the RH Law may not be assailed through an “as-applied challenge, still,
the Court has time and again acted liberally on the locus standi requirement. It has accorded certain
individuals standing to sue, not otherwise directly injured or with material interest affected by a
Government act, provided a constitutional issue of transcendental importance is invoked. The rule on
locus standi is, after all, a procedural technicality which the Court has, on more than one occasion,
waived or relaxed, thus allowing non-traditional plaintiffs, such as concerned citizens, taxpayers, voters
or legislators, to sue in the public interest, albeit they may not have been directly injured by the
operation of a law or any other government act.
The present action cannot be properly treated as a petition for prohibition, the transcendental
importance of the issues involved in this case warrants that the Court set aside the technical defects and
take primary jurisdiction over the petition at bar. One cannot deny that the issues raised herein have
potentially pervasive influence on the social and moral well being of this nation, specially the youth;
hence, their proper and just determination is an imperative need. This is in accordance with the wellentrenched principle that rules of procedure are not inflexible tools designed to hinder or delay, but to
facilitate and promote the administration of justice. Their strict and rigid application, which would result
in technicalities that tend to frustrate, rather than promote substantial justice, must always be
eschewed.
Most of the petitions are praying for injunctive reliefs and so the Court would just consider them as
petitions for prohibition under Rule 65, over which it has original jurisdiction. Where the case has farreaching implications and prays for injunctive reliefs, the Court may consider them as petitions for
prohibition under Rule 65.
The RH Law does not violate the one subject/one bill rule. In this case, a textual analysis of the various
provisions of the law shows that both “reproductive health” and “responsible parenthood” are
interrelated and germane to the overriding objective to control the population growth. As expressed in
the first paragraph of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. – The State recognizes and guarantees the human rights of all persons
including their right to equality and nondiscrimination of these rights, the right to sustainable human
development, the right to health which includes reproductive health, the right to education and
information, and the right to choose and make decisions for themselves in accordance with their
religious convictions, ethics, cultural beliefs, and the demands of responsible parenthood.
Considering the close intimacy between “reproductive health” and “responsible parenthood” which
bears to the attainment of the goal of achieving “sustainable human development” as stated under its
terms, the Court finds no reason to believe that Congress intentionally sought to deceive the public as to
the contents of the assailed legislation.
Accordingly, the Court declares R.A. No. 10354 as NOT UNCONSTITUTIONAL except with respect to the
following provisions which are declared UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a) require private health
facilities and non-maternity specialty hospitals and hospitals owned and operated by a religious group to
refer patients, not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to
another health facility which is conveniently accessible; and b) allow minor-parents or minors who have
suffered a miscarriage access to modem methods of family planning without written consent from their
parents or guardian/s;
2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly Section 5 .24 thereof,
insofar as they punish any healthcare service provider who fails and or refuses to disseminate
information regarding programs and services on reproductive health regardless of his or her religious
beliefs.
3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they allow a married
individual, not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to
undergo reproductive health procedures without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they limit the
requirement of parental consent only to elective surgical procedures.
5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section 5.24 thereof,
insofar as they punish any healthcare service provider who fails and/or refuses to refer a patient not in
an emergency or life-threatening case, as defined under Republic Act No. 8344, to another health care
service provider within the same facility or one which is conveniently accessible regardless of his or her
religious beliefs;
6) Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5 .24 thereof, insofar
as they punish any public officer who refuses to support reproductive health programs or shall do any
act that hinders the full implementation of a reproductive health program, regardless of his or her
religious beliefs;
7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the rendering of pro bona
reproductive health service in so far as they affect the conscientious objector in securing PhilHealth
accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier “primarily” in defining
abortifacients and contraceptives, as they are ultra vires and, therefore, null and void for contravening
Section 4(a) of the RH Law and violating Section 12, Article II of the Constitution.
Imbong vs Ochoa et.al. G.R. No. 204819 April 8, 2014
This a Landmark Case not only citing the validity of the RH Bill but also the classic
scenario where of the Catholic Church vs the Government. It is no secret that the
Catholic Church plays political power in the Philippines for many years. This displays
ow the separation of the State and the Church paves it way.
FACTS:
Concerned citizens and the Catholic Church had petitioned for the constitutionality of
the Reproductive Health Bill.
ISSUES:
A. Whether or not (WON) RA 10354/Reproductive Health (RH) Law is
unconstitutional for violating the:
1. Right to life
2. Right to health
3. Freedom of religion and right to free speech
a.) WON the RH Law violates the guarantee of religious freedom since it mandates the
State-sponsored procurement of contraceptives, which contravene the religious beliefs
of e.g. the petitioners
b.) WON the RH Law violates the guarantee of religious freedom by compelling
medical health practitioners, hospitals, and health care providers, under pain of penalty,
to refer patients to other institutions despite their conscientious objections
c.) WON the RH Law violates the guarantee of religious freedom by requiring wouldbe spouses, as a condition for the issuance of a marriage license, to attend a seminar on
parenthood, family planning, breastfeeding and infant nutrition
4. Right to privacy (marital privacy and autonomy)
5. Freedom of expression and academic freedom
6. Due process clause
7. Equal protection clause
8. Prohibition against involuntary servitude
B. WON the delegation of authority to the Food and Drug Administration (FDA) to
determine WON a supply or product is to be included in the Essential Drugs List is
valid
C. WON the RH Law infringes upon the powers devolved to Local Governments and
the Autonomous Region in Muslim Mindanao (ARMM)
* HELD:
A.
1. NO.
2. NO.
3.
a.) NO.
b.) YES.
c.) NO.
4. YES.
5. NO.
6. NO.
7. NO.
8. NO.
B. NO.
C. NO.
* RATIO:
1.) Majority of the Members of the Court believe that the question of when life begins
is a scientific and medical issue that should not be decided, at this stage, without proper
hearing and evidence. However, they agreed that individual Members could express
their own views on this matter.
Article II, Section 12 of the Constitution states: “The State recognizes the sanctity of
family life and shall protect and strengthen the family as a basic autonomous social
institution. It shall equally protect the life of the mother and the life of the unborn from
conception.”
In its plain and ordinary meaning (a canon in statutory construction), the traditional
meaning of “conception” according to reputable dictionaries cited by the ponente is that
life begins at fertilization. Medical sources also support the view that conception begins
at fertilization.
The framers of the Constitution also intended for (a) “conception” to refer to the
moment of “fertilization” and (b) the protection of the unborn child upon fertilization.
In addition, they did not intend to ban all contraceptives for being unconstitutional;
only those that kill or destroy the fertilized ovum would be prohibited. Contraceptives
that actually prevent the union of the male sperm and female ovum, and those that
similarly take action before fertilization should be deemed non-abortive, and thus
constitutionally permissible.
The intent of the framers of the Constitution for protecting the life of the unborn
child was to prevent the Legislature from passing a measure prevent
abortion. The Court cannot interpret this otherwise. The RH Law is in line with this
intent and actually prohibits abortion. By using the word “or” in defining
abortifacient (Section 4(a)), the RH Law prohibits not only drugs or devices that
prevent implantation but also those that induce abortion and induce the destruction of
a fetus inside the mother’s womb. The RH Law recognizes that the fertilized ovum
already has life and that the State has a bounded duty to protect it.
However, the authors of the IRR gravely abused their office when they redefined the
meaning of abortifacient by using the term “primarily”. Recognizing as abortifacients
only those that “primarily induce abortion or the destruction of a fetus inside the
mother’s womb or the prevention of the fertilized ovum to reach and be implanted in
the mother’s womb” (Sec. 3.01(a) of the IRR) would pave the way for the approval of
contraceptives that may harm or destroy the life of the unborn from
conception/fertilization. This violates Section 12, Article II of the Constitution. For the
same reason, the definition of contraceptives under the IRR (Sec 3.01(j)), which also
uses the term “primarily”, must be struck down.
2.) Petitioners claim that the right to health is violated by the RH Law because it requires
the inclusion of hormonal contraceptives, intrauterine devices, injectables and other
safe, legal, non-abortifacient and effective family planning products and supplies in the
National Drug Formulary and in the regular purchase of essential medicines and
supplies of all national hospitals (Section 9 of the RH Law). They cite risks of getting
diseases gained by using e.g. oral contraceptive pills.
Some petitioners do not question contraception and contraceptives per se. Rather, they
pray that the status quo under RA 4729 and 5921 be maintained. These laws prohibit
the sale and distribution of contraceptives without the prescription of a duly-licensed
physician.
The RH Law does not intend to do away with RA 4729 (1966). With RA 4729 in place,
the Court believes adequate safeguards exist to ensure that only safe
contraceptives are made available to the public. In fulfilling its mandate under Sec.
10 of the RH Law, the DOH must keep in mind the provisions of RA 4729:
the contraceptives it will procure shall be from a duly licensed drug store or
pharmaceutical company and that the actual distribution of these contraceptive
drugs and devices will be done following a prescription of a qualified medical
practitioner.
Meanwhile, the requirement of Section 9 of the RH Law is to be considered
“mandatory” only after these devices and materials have been tested, evaluated
and approved by the FDA. Congress cannot determine that contraceptives are “safe,
legal, non-abortificient and effective”.
3.) The Court cannot determine whether or not the use of contraceptives or
participation in support of modern RH measures (a) is moral from a religious
standpoint; or, (b) right or wrong according to one’s dogma or belief. However, the
Court has the authority to determine whether or not the RH Law contravenes the
Constitutional guarantee of religious freedom.
3a.) The State may pursue its legitimate secular objectives without being dictated upon
the policies of any one religion. To allow religious sects to dictate policy or restrict other
groups would violate Article III, Section 5 of the Constitution or the Establishment
Clause. This would cause the State to adhere to a particular religion, and thus,
establishes a state religion. Thus, the State can enhance its population control program
through the RH Law even if the promotion of contraceptive use is contrary to the
religious beliefs of e.g. the petitioners.
3b.) Sections 7, 23, and 24 of the RH Law obliges a hospital or medical practitioner to
immediately refer a person seeking health care and services under the law to another
accessible healthcare provider despite their conscientious objections based on religious
or ethical beliefs. These provisions violate the religious belief and conviction of a
conscientious objector. They are contrary to Section 29(2), Article VI of the
Constitution or the Free Exercise Clause, whose basis is the respect for the
inviolability of the human conscience.
The provisions in the RH Law compelling non-maternity specialty hospitals and
hospitals owned and operated by a religious group and health care service providers to
refer patients to other providers and penalizing them if they fail to do so (Sections 7
and 23(a)(3)) as well as compelling them to disseminate information and perform
RH procedures under pain of penalty (Sections 23(a)(1) and (a)(2) in relation to Section
24) also violate (and inhibit) the freedom of religion. While penalties may be imposed by
law to ensure compliance to it, a constitutionally-protected right must prevail over
the effective implementation of the law.
Excluding public health officers from being conscientious objectors (under Sec. 5.24 of
the IRR) also violates the equal protection clause. There is no perceptible distinction
between public health officers and their private counterparts. In addition, the freedom
to believe is intrinsic in every individual and the protection of this freedom remains
even if he/she is employed in the government.
Using the compelling state interest test, there is no compelling state interest to limit
the free exercise of conscientious objectors. There is no immediate danger to the life
or health of an individual in the perceived scenario of the above-quoted provisions. In
addition, the limits do not pertain to life-threatening cases.
The respondents also failed to show that these provisions are least intrusive
means to achieve a legitimate state objective. The Legislature has already taken other
secular steps to ensure that the right to health is protected, such as RA 4729, RA 6365
(The Population Act of the Philippines) and RA 9710 (The Magna Carta of Women).
3c.) Section 15 of the RH Law, which requires would-be spouses to attend a seminar
on parenthood, family planning, breastfeeding and infant nutrition as a condition for
the issuance of a marriage license, is a reasonable exercise of police power by the
government. The law does not even mandate the type of family planning methods to
be included in the seminar. Those who attend the seminar are free to accept or reject
information they receive and they retain the freedom to decide on matters of family life
without the intervention of the State.
4.) Section 23(a)(2)(i) of the RH Law, which permits RH procedures even with only the
consent of the spouse undergoing the provision (disregarding spousal
content), intrudes into martial privacy and autonomy and goes against the
constitutional safeguards for the family as the basic social
institution. Particularly, Section 3, Article XV of the Constitution mandates the State
to defend: (a) the right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood and (b) the right of families or
family associations to participate in the planning and implementation of policies and
programs that affect them. The RH Law cannot infringe upon this mutual decisionmaking, and endanger the institutions of marriage and the family.
The exclusion of parental consent in cases where a minor undergoing a procedure is
already a parent or has had a miscarriage (Section 7 of the RH Law) is also anti-family
and violates Article II, Section 12 of the Constitution, which states: “The natural and
primary right and duty of parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of the Government.” In
addition, the portion of Section 23(a)(ii) which reads “in the case of minors, the written
consent of parents or legal guardian or, in their absence, persons exercising parental
authority or next-of-kin shall be required only in elective surgical procedures” is invalid
as it denies the right of parental authority in cases where what is involved is “nonsurgical procedures.”
However, a minor may receive information (as opposed to procedures) about family
planning services. Parents are not deprived of parental guidance and control over their
minor child in this situation and may assist her in deciding whether to accept or reject
the information received. In addition, an exception may be made in life-threatening
procedures.
5.) The Court declined to rule on the constitutionality of Section 14 of the RH Law,
which mandates the State to provide Age-and Development-Appropriate Reproductive
Health Education. Although educators might raise their objection to their participation
in the RH education program, the Court reserves its judgment should an actual case be
filed before it.
Any attack on its constitutionality is premature because the Department of Education
has not yet formulated a curriculum on age-appropriate reproductive health education.
Section 12, Article II of the Constitution places more importance on the role of parents
in the development of their children with the use of the term “primary”. The right of
parents in upbringing their youth is superior to that of the State.
The provisions of Section 14 of the RH Law and corresponding provisions of the IRR
supplement (rather than supplant) the right and duties of the parents in the moral
development of their children.
By incorporating parent-teacher-community associations, school officials, and other
interest groups in developing the mandatory RH program, it could very well be said that
the program will be in line with the religious beliefs of the petitioners.
6.) The RH Law does not violate the due process clause of the Constitution as
the definitions of several terms as observed by the petitioners are not vague.
The definition of “private health care service provider” must be seen in relation to
Section 4(n) of the RH Law which defines a “public health service provider”. The
“private health care institution” cited under Section 7 should be seen as synonymous to
“private health care service provider.
The terms “service” and “methods” are also broad enough to include providing of
information and rendering of medical procedures. Thus, hospitals operated by religious
groups are exempted from rendering RH service and modern family planning methods
(as provided for by Section 7 of the RH Law) as well as from giving RH information
and procedures.
The RH Law also defines “incorrect information”. Used together in relation to Section
23 (a)(1), the terms “incorrect” and “knowingly” connote a sense of malice and ill
motive to mislead or misrepresent the public as to the nature and effect of programs
and services on reproductive health.
7.) To provide that the poor are to be given priority in the government’s RH
program is not a violation of the equal protection clause. In fact, it is pursuant to
Section 11, Article XIII of the Constitution, which states that the State shall prioritize
the needs of the underprivileged, sick elderly, disabled, women, and children
and that it shall endeavor to provide medical care to paupers.
The RH Law does not only seek to target the poor to reduce their number, since Section
7 of the RH Law prioritizes poor and marginalized couples who are suffering from
fertility issues and desire to have children. In addition, the RH Law does not prescribe
the number of children a couple may have and does not impose conditions upon
couples who intend to have children. The RH Law only seeks to provide priority to the
poor.
The exclusion of private educational institutions from the mandatory RH education
program under Section 14 is valid. There is a need to recognize the academic freedom
of private educational institutions especially with respect to religious instruction and to
consider their sensitivity towards the teaching of reproductive health education.
8.) The requirement under Sec. 17 of the RH Law for private and non-government
health care service providers to render 48 hours of pro bono RH services does not
amount to involuntary servitude, for two reasons. First, the practice of medicine is
undeniably imbued with public interest that it is both the power and a duty of the State
to control and regulate it in order to protect and promote the public welfare. Second,
Section 17 only encourages private and non-government RH service providers to
render pro bono service. Besides the PhilHealth accreditation, no penalty is imposed
should they do otherwise.
However, conscientious objectors are exempt from Sec. 17 as long as their religious
beliefs do not allow them to render RH service, pro bono or otherwise (See Part 3b of
this digest.)
B. The delegation by Congress to the FDA of the power to determine whether or not
a supply or product is to be included in the Essential Drugs List is valid, as the FDA
not only has the power but also the competency to evaluate, register and cover health
services and methods (under RA 3720 as amended by RA 9711 or the FDA Act of
2009).
C. The RH Law does not infringe upon the autonomy of local governments. Paragraph
(c) of Section 17 provides a categorical exception of cases involving nationally-funded
projects, facilities, programs and services. Unless a local government unit (LGU) is
particularly designated as the implementing agency, it has no power over a program for
which funding has been provided by the national government under the annual general
appropriations act, even if the program involves the delivery of basic services within
the jurisdiction of the LGU.
In addition, LGUs are merely encouraged to provide RH services. Provision of these
services are not mandatory. Therefore, the RH Law does not amount to an undue
encroachment by the national government upon the autonomy enjoyed by LGUs.
Article III, Sections 6, 10, and 11 of RA 9054 or the Organic Act of the ARMM merely
delineates the powers that may be exercised by the regional government. These
provisions cannot be seen as an abdication by the State of its power to enact legislation
that would benefit the general welfare.
DISSENTING OPINION
LEONEN, J.:
The Responsible Parenthood and Reproductive Health Act of 2012 should not be declared unconstitutional in
whole or in any of its parts given the petitions filed in this case.
None of the petitions properly present an “actual case or controversy,” which deserves the exercise of our
awesome power of judicial review.2 It is our duty not to rule on the abstract and speculative issues barren of
actual facts.3 These consolidated petitions, which contain bare allegations, do not provide the proper venue
to decide on fundamental issues. The law in question is needed social legislation.
That we rule on these special civil actions for certiorari and prohibition — which amounts to a pre–
enforcement free–wheeling facial review of the statute and the implementing rules and regulations4 — is
very bad precedent. The issues are far from justiciable. Petitioners claim in their class suits that they
entirely represent a whole religion,5 the Filipino nation6 and, worse, all the unborn.7 The intervenors also
claim the same representation: Filipinos and Catholics.8 Many of the petitions also sue the President of the
Republic.9
We should apply our rules rigorously and dismiss these cases. The transcendental importance of the issues
they want us to decide will be better served when we wait for the proper cases with the proper parties
suffering real, actual or more imminent injury. There is no showing of an injury so great and so imminent
that we cannot wait for these cases.
Claims relating to the beginning of life, the relationship of conscientious objection and the right to religion,
the effects of contraception, and even the ponencia’s claim that the family is put in danger if one spouse
decides when there is a disagreement between them are best decided within their real contexts so that we
will be able to narrowly tailor the doctrines in our decision.10 The danger of ruling on abstract cases is that
we foreclose real litigation between real parties.11 The danger of an advisory opinion is that we are forced to
substitute our own imagination of the facts that can or will happen. In an actual case, there is judicial proof
of the real facts that frame our discretion.
The law clearly adopts a policy against abortion and prohibits abortifacients.12 The definition of abortifacients
is sufficiently broad to cover many moral convictions relating to the beginning of life.13 We do not need to
decide on these issue barren of actual facts that can sharpen factual and legal positions.
The court cannot make a declaration on the beginning of life. Any declaration on this issue will be fraught
with contradictions. Even the Constitutional Commissioners were not in full agreement; hence, the use of
the word “conception” rather than “fertilized ovum” in Article II, Section 12 of the Constitution.14 There were
glaring factual inaccuracies peddled during their discussion.15
Moreover, declaring the beginning of life complicates future constitutional adjudication. This will have real
repercussions on, among others, acceptable medical procedures for ectopic pregnancies,16 medical
complications as a result of pregnancy resulting from sexual assaults,17 and on assisted reproductive
technologies.18
The petitions have failed to present clear cases when the provisions for conscientious objection would truly
amount to a violation of religion. They have not distinguished the relationship of conscience and specific
religious dogma.19 They have not established religious canon that conflict with the general provision of
Sections 7, 17 and 23 of the law. The comments in intervention20 in fact raise serious questions regarding
what could be acceptable Catholic doctrine on some issues of contraception and sex as only for procreation.
The majority has decided to nullify portions of the law on the basis of inchoate Catholic doctrine without
considering that the law as phrased would be acceptable to other faiths, consciences and beliefs. Due to the
failure of the petitioners to present actual cases, it cannot be possible to see whether their religious
objection can be accommodated in the application and interpretation of the law rather than nullify the
provisions wholesale.
We should tread carefully when what is involved is a religion that is not the minority. Invocations of religious
freedom can be a disguised way of imposing the dominant faith on others. This is especially true in
physician–patient relationships. While the physician may have her or his own religious beliefs, this should
not improperly dictate on the range of services that is wanted and needed by the patient.21 Again, there are
no actual cases in specific contexts with clear religious beliefs pertaining to accepted dogma of a religion
established by the petitions. The proposed declaration of unconstitutionality of portions of Section 23 is
premature and inadvisable. It also amounts to a judicial amendment of the physician’s oath.
The law breaks the deadlock when there is disagreement between the spouses as to whether to avail of a
reproductive health technology.22 The ponencia proposes that this violates the right to family.23 This is one
conclusion. The other is that it allows the couple to have a final decision and not continue with a perennial
conflict. The other possibility here is that the man, who most often is not the one who avails of the
reproductive health technology, dictates on the woman. This will then result in a violation of the requirement
of fundamental equality in Article II, Section 14 of the Constitution.24 The majority, in refusing to
acknowledge the autonomy of individuals over their own bodies even in the context of marriage, has just
strengthened patriarchy and increased the possibility for spousal abuse.
All the petitions are premature. At worse, the petitions attempt to impose a moral or political belief upon the
others by tempting this court to use its power of judicial review.
This court is not the venue to continue the brooding and vociferous political debate that has already
happened and has resulted in legislation.25 Constitutional issues normally arise when the right and
obligations become doubtful as a result of the implementation of the statute. This forum does not exist to
undermine the democratically deliberated results coming from the Congress and approved by the President.
Again, there is no injury to a fundamental right arising from concrete facts established with proof. Rather,
the pleadings raise grave moral and philosophical issues founded on facts that have not yet happened. They
are the product of speculation by the petitioners.
To steeled advocates who have come to believe that their advocacy is the one true moral truth, their
repeated view may seem to them as the only factual possibility. Rabid advocacy of any view will be
intolerant of the nuanced reality that proceeds from conscious and deliberate examination of facts.
This kind of advocacy should not sway us.
Our competence is to decide on legal principle only in concrete controversies. We should jealously and
rigorously protect the principle of justiciability of constitutional challenges. We should preserve our role
within the current constitutional order. We undermine the legitimacy of this court when we participate in
rulings in the abstract because there will always be the strong possibility that we will only tend to mirror our
own personal predilections. We should thus adopt a deferential judicial temperament especially for social
legislation.
This law should not be declared as unconstitutional, in whole or in part, on the basis of the consolidated
petitions. The status quo ante order against the Responsible Parenthood and Reproductive Health Act of
2012 or Republic Act No. 10354 (RH Law) should be lifted immediately.
There should be no further obstacle in having the entire law fully implemented.
I
No Actual Controversy,
“Facial Review” is Improper
It has never been the constitutional mandate of the Supreme Court to answer all of life’s questions. It is
endowed instead with the solemn duty to determine when it should decline to decide with finality questions
that are not legal and those that are theoretical and speculative. This court’s duty includes its ability to stay
its hand when the issues presented are not justiciable.
The requirement in constitutional adjudication is that we decide only when there is a “case or
controversy.”26 This is clear in the second paragraph of Article VIII, Section 1 of the Constitution, thus:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess jurisdiction on the part of any branch or instrumentality of
the Government. (Emphasis supplied)
The requirement for a “case” or “controversy” locates the judiciary in the scheme of our constitutional order.
It defines our role and distinguishes this institution from the other constitutional organs.
The ponencia claims that there is an actual case and controversy existing in the present controversy, and it
is ripe for determination.27 The ponente reasons that “[c]onsidering that the RH Law and its implementing
rules have already taken effect, and considering that the budgetary measures to carry out the law have
already been passed, it is evident that the subject petitions present a justiciable controversy. As stated
earlier, when an action of the legislative branch is seriously alleged to have infringed the Constitution, it not
only becomes a right, but also a duty of the Judiciary to [settle] the dispute.”28
I disagree.
An actual case or controversy is “one which involves a conflict of legal rights, an assertion of opposite legal
claims susceptible of judicial resolution; the case must not be moot or academic or based on extra–legal or
other similar considerations not cognizable by a court of justice.”29 To be justiciable, the issues presented
must be “‘definite and concrete, touching the legal relations of parties having adverse legal interest;’ a real
and substantial controversy admitting of specific relief.”30 The term justiciability refers to the dual limitation
of only considering in an adversarial context the questions presented before courts, and in the process, the
courts’ duty to respect its co–equal branches of government’s powers and prerogatives under the doctrine of
separation of powers.31
There is a case or controversy when there is a real conflict of rights or duties arising from actual facts.
These facts, properly established in court through evidence or judicial notice, provide the natural limitations
upon judicial interpretation of the statute. When it is claimed that a statute is inconsistent with a provision
of the Constitution, the meaning of a constitutional provision will be narrowly drawn.
Without the necessary findings of facts, this court is left to speculate leaving justices to grapple within the
limitations of their own life experiences. This provides too much leeway for the imposition of political
standpoints or personal predilections of the majority of this court. This is not what the Constitution
contemplates. Rigor in determining whether controversies brought before us are justiciable avoids the
counter majoritarian difficulties attributed to the judiciary.
Without the existence and proper proof of actual facts, any review of the statute or its implementing rules
will be theoretical and abstract. Courts are not structured to predict facts, acts or events that will still
happen. Unlike the legislature, we do not determine policy. We read law only when we are convinced that
there is enough proof of the real acts or events that raise conflicts of legal rights or duties. Unlike the
executive, our participation comes in after the law has been implemented. Verily, we also do not determine
how laws are to be implemented.
The existence of a law or its implementing orders or a budget for its implementation is far from the
requirement that there are acts or events where concrete rights or duties arise. The existence of rules do
not substitute for real facts.
Petitioners cite Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on
Ancestral Domain (GRP)32 as basis for asserting that this court can take cognizance of constitutional cases
without actual controversies. In that case, this court was asked to rule on the validity of the Memorandum of
Agreement on the Ancestral Domain (MOA–AD) between the GRP and the Moro Islamic Liberation Front
(MILF) which included provisions on the definition of the “Bangsamoro” people; the “Bangsamoro Juridical
Entity” (BJE); territory of the Bangsamoro homeland; the total production sharing between the central
government and the BJE relating to natural resources; and “associative relationship” with the central
government.33
Even in that case, this court acknowledged the requirement of an actual case or controversy in exercising
the power of judicial review.
The power of judicial review is limited to actual cases or controversies. Courts decline to issue advisory
opinions or to resolve hypothetical or feigned problems, or mere academic questions. The limitation of the
power of judicial review to actual cases and controversies defines the role assigned to the judiciary in a
tripartite allocation of power, to assure that the courts will not intrude into areas committed to the other
branches of government.34
This court then ruled that the petitions were ripe for adjudication because of: “[1] the failure of respondents
to consult the local government units or communities affected constitutes a departure by respondents from
their mandate under E.O. No. 3; [2] respondents exceeded their authority by the mere act of guaranteeing
amendments to the Constitution. Any alleged violation of the Constitution by any branch of government is a
proper matter for judicial review.”35 Citing David v. Macapagal–Arroyo, this court allowed petitioners,
petitioners–in–intervention, and intervening respondents’ claims of locus standi due to the paramount public
interest or transcendental importance of the issues involved.
The actual case in Province of North Cotabato was triggered by the process invoked in the negotiation of the
agreement and the claim that it exceeded the authority of the government panel in talks with the Moro
Islamic Liberation Front (MILF). Executive Order No. 3 was already implemented by the acts of the
negotiating panel.
The ponencia’s reading of Province of North Cotabato is inaccurate. My esteemed colleague holds:
x x x Citing precedents, the Court ruled that the fact of the law or act in question being not yet effective
does not negate ripeness. Concrete acts under a law are not necessary to render the controversy ripe. Even
a singular violation of the Constitution and/or law is enough to awaken judicial duty.
In this case, the Court is of the view that an actual case or controversy exists and that the same is
ripe for judicial determination. Considering that the RH Law and its implementing rules have already
taken effect, and that the budgetary measures to carry out the law have already been passed, it is evident
that the subject petitions present a justiciable controversy. As stated earlier, when an action of the
legislative branch is seriously alleged to have infringed the Constitution, it not only becomes a right, but also
a duty of the Judiciary to settle the dispute.36 (Emphasis in the original)
Unlike Province of North Cotabato, there is yet no implementation of the RH law. The waiver of justiciability
is the exception. It is not the general rule.37 Province of North Cotabato involved a peculiar set of facts that
required this court to exercise its power of judicial review. The respondents attempted to put the
constitutional question outside the court’s sphere of judicial review through the performance of acts that
rendered a ripening case moot and academic.38
In Garcia v. Executive Secretary,39 this court was faced with the issue of the constitutionality of Section 19
of Republic Act No. 847940 entitled “An Act Deregulating The Downstream Oil Industry And For Other
Purposes.” This court held that there was no justiciable controversy in the case as the issue raised went into
the policy or wisdom of the law, thus:
Stripped to its core, what petitioner Garcia raises as an issue is the propriety of immediately and fully
deregulating the oil industry. Such determination essentially dwells on the soundness or wisdom of the
timing and manner of the deregulation Congress wants to implement through R.A. No. 8497. Quite clearly,
the issue is not for us to resolve; we cannot rule on when and to what extent deregulation should take place
without passing upon the wisdom of the policy of deregulation that Congress has decided upon. To use the
words of Baker v. Carr, the ruling that petitioner Garcia asks requires “an initial policy determination of a
kind clearly for non–judicial discretion”; the branch of government that was given by the people the full
discretionary authority to formulate the policy is the legislative department.
xxxx
Petitioner Garcia’s thesis readily reveals the political, hence, non–justiciable, nature of his petition; the
choice of undertaking full or partial deregulation is not for this Court to make.41
Then in Atty. Lozano v. Speaker Nograles,42 this court reiterated that “[i]n our jurisdiction, the issue of
ripeness [which is an aspect of the case or controversy requirement] is generally treated in terms of actual
injury to the plaintiff. Hence, a question is ripe for adjudication when the act being challenged has had a
direct adverse effect on the individual challenging it x x x [or when] an action has already been
accomplished or performed by a branch of government x x x.”43
In Southern Hemisphere Engagement Network, Inc. v. Anti–Terrorism Council,44 this court declined to rule
on the constitutionality of Republic Act No. 9372 or “An Act to Secure the State and Protect Our People from
Terrorism,” otherwise known as the Human Security Act of 2007. Again, with respect to the requirement of
the existence of an actual case, this court held:
As early as Angara v. Electoral Commission, the Court ruled that the power of judicial review is limited to
actual cases or controversies to be exercised after full opportunity of argument by the parties. Any attempt
at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to
actualities.
An actual case or controversy means an existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory
opinion.
Information Technology Foundation of the Philippines v. COMELEC cannot be more emphatic:
“[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however
intellectually challenging. The controversy must be justiciable—definite and concrete, touching on the legal
relations of parties having adverse legal interests. In other words, the pleadings must show an active
antagonistic assertion of a legal right, on the one hand, and a denial thereof on the other hand; that is, it
must concern a real and not merely a theoretical question or issue. There ought to be an actual and
substantial controversy admitting of specific relief through a decree conclusive in nature, as distinguished
from an opinion advising what the law would be upon a hypothetical state of facts.”
Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a Highly
Urbanized City was held to be premature as it was tacked on uncertain, contingent events. Similarly, a
petition that fails to allege that an application for a license to operate a radio or television station has been
denied or granted by the authorities does not present a justiciable controversy, and merely wheedles the
Court to rule on a hypothetical problem.
The Court dismissed the petition in Philippine Press Institute v. Commission on Elections for failure to cite
any specific affirmative action of the Commission on Elections to implement the assailed resolution. It
refused, in Abbas v. Commission on Elections, to rule on the religious freedom claim of the therein
petitioners based merely on a perceived potential conflict between the provisions of the Muslim Code and
those of the national law, there being no actual controversy between real litigants.
The list of cases denying claims resting on purely hypothetical or anticipatory grounds goes on ad infinitum.
The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to any
constitutional interest suffices to provide a basis for mounting a constitutional challenge. This, however, is
qualified by the requirement that there must be sufficient facts to enable the Court to intelligently
adjudicate the issues.45 (Emphasis supplied)
Recently, this court in Corales v. Republic46 passed upon the ripeness or prematurity of a petition for
prohibition assailing the Audit Observation Memorandum (AOM) issued by the Provincial State Auditor of
Laguna against petitioner as Mayor. We again held that:
x x x this Court can hardly see any actual case or controversy to warrant the exercise of its power of judicial
review. Settled is the rule that for the courts to exercise the power of judicial review, the following must be
extant: (1) there must be an actual case calling for the exercise of judicial power; (2) the question must be
ripe for adjudication; and (3) the person challenging must have the “standing.” An actual case or
controversy involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial
resolution as distinguished from a mere hypothetical or abstract difference or dispute. There must be a
contrariety of legal rights that can be interpreted and enforced on the basis of existing law and
jurisprudence. Closely related thereto is that the question must be ripe for adjudication. A question is
considered ripe for adjudication when the act being challenged has had a direct adverse effect on the
individual challenging it.
xxxx
The requisites of actual case and ripeness are absent in the present case. To repeat, the AOM issued by
Andal merely requested petitioner Corales to comment/reply thereto. Truly, the AOM already contained a
recommendation to issue a Notice of Disallowance; however, no Notice of Disallowance was yet issued. More
so, there was no evidence to show that Andal had already enforced against petitioner Corales the contents
of the AOM. x x x. The action taken by the petitioners to assail the AOM was, indeed, premature and based
entirely on surmises, conjectures and speculations that petitioner Corales would eventually be compelled to
reimburse petitioner Dr. Angeles’ salaries, should the audit investigation confirm the irregularity of such
disbursements.47
The doctrinal character of the requirement of an actual case may also be inferred from the tenor of the
reservations of several members of this court in Province of North Cotabato.48
Then Justice Chico–Nazario, in voting to grant the motion to dismiss of the Office of Solicitor General and to
dismiss the petitions, pointed out that:
The Court should not feel constrained to rule on the Petitions at bar just because of the great public interest
these cases have generated. We are, after all, a court of law, and not of public opinion. The power of
judicial review of this Court is for settling real and existent dispute, it is not for allaying fears or
addressing public clamor. In acting on supposed abuses by other branches of government, the
Court must be careful that it is not committing abuse itself by ignoring the fundamental
principles of constitutional law.
x x x. The Court must accord a co–equal branch of the government nothing less than trust and the
presumption of good faith.
xxxx
Upon the Executive Department falls the indisputably difficult responsibility of diffusing the highly volatile
situation in Mindanao resulting from the continued clashes between the Philippine military and Muslim rebel
groups. In negotiating for peace, the Executive Department should be given enough leeway and should not
be prevented from offering solutions which may be beyond what the present Constitution allows, as long as
such solutions are agreed upon subject to the amendment of the Constitution by completely legal
means.49 (Emphasis supplied)
Justice Velasco in that case emphasized the need to be vigilant in protecting the doctrine of separation of
powers enshrined in our Constitution, hence:
Over and above the foregoing considerations, however, is the matter of separation of powers which would
likely be disturbed should the Court meander into alien territory of the executive and dictate how the final
shape of the peace agreement with the MILF should look like. The system of separation of powers
contemplates the division of the functions of government into its three (3) branches x x x. Consequent to
the actual delineation of power, each branch of government is entitled to be left alone to discharge its duties
as it sees fit. Being one such branch, the judiciary, as Justice Laurel asserted in Planas v. Gil, “will neither
direct nor restrain executive [or legislative action].” Expressed in another perspective, the system of
separated powers is designed to restrain one branch from inappropriate interference in the business, or
intruding upon the central prerogatives, of another branch; it is a blend of courtesy and caution, “a self–
executing safeguard against the encroachment or aggrandizement of one branch at the expense of the
other.” x x x. The sheer absurdity of the situation where the hands of executive officials, in their quest for a
lasting and honorable peace, are sought to be tied lest they agree to something irreconcilable with the
Constitution, should not be lost on the Court.
Under our constitutional set up, there cannot be any serious dispute that the maintenance of the peace,
insuring domestic tranquility and the suppression of violence are the domain and responsibility of the
executive. Now then, if it be important to restrict the great departments of government to the exercise of
their appointed powers, it follows, as a logical corollary, equally important, that one branch should be left
completely independent of the others, independent not in the sense that the three shall not cooperate in the
common end of carrying into effect the purposes of the constitution, but in the sense that the acts of each
shall never be controlled by or subjected to the influence of either of the branches.50
Eloquently, Justice Brion in his dissenting opinion in Province of North Cotabato asserted:
x x x. Where policy is involved, we are bound by our constitutional duties to leave the question for
determination by those duly designated by the Constitution—the Executive, Congress, or the people in their
sovereign capacity.
In the present case, the peace and order problems of Mindanao are essentially matters for the Executive to
address, with possible participation from Congress and the sovereign people as higher levels of policy action
arise. Its search for solutions, in the course of several presidencies, has led the Executive to the peace
settlement process. As has been pointed out repetitively in the pleadings and the oral arguments, the latest
move in the Executive’s quest for peace—the MOA–AD—would have not been a good deal for the country if
it had materialized. This Court, however, seasonably intervened and aborted the planned signing of the
agreement. The Executive, for its part, found it wise and appropriate to fully heed the signals from our initial
action and from the public outcry the MOA–AD generated; it backtracked at the earliest opportunity in a
manner consistent with its efforts to avoid or minimize bloodshed while preserving the peace process. At the
moment, the peace and order problem is still with the Executive where the matter should be; the initiative
still lies with that branch of government. The Court’s role, under the constitutional scheme that we are
sworn to uphold, is to allow the initiative to be where the Constitution says it should be. We cannot and
should not interfere unless our action is unavoidably necessary because the Executive is acting
beyond what is allowable, or because it has failed to act in the way it should act, under the
Constitution and our laws.
xxxx
Rather than complicate the issues further with judicial pronouncements that may have
unforeseen or unforeseeable effects on the present fighting and on the solutions already being
applied, this Court should exercise restraint as the fears immediately generated by a signed and
concluded MOA–AD have been addressed and essentially laid to rest. Thus, rather than pro–
actively act on areas that now are more executive than judicial, we should act with calibrated
restraint along the lines dictated by the constitutional delineation of powers. Doing so cannot be
equated to the failure of this Court to act as its judicial duty requires; as I mentioned earlier, we have
judicially addressed the concerns posed with positive effects and we shall not hesitate to judicially act in the
future, as may be necessary, to ensure that the integrity of our constitutional and statutory rules and
standards are not compromised. If we exercise restraint at all, it is because the best interests of the nation
and our need to show national solidarity at this point so require, in order that the branch of government in
the best position to act can proceed to act.
xxxx
x x x. We can effectively move as we have shown in this MOA–AD affair, but let this move be at the
proper time and while we ourselves observe the limitations the Constitution commonly impose
on all branches of government in delineating their respective roles.51 (Emphasis supplied)
It is true that the present Constitution grants this court with the exercise of judicial review when the case
involves the determination of “grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government.”52 This new feature of the 1987 Constitution
affects our political question doctrine. It does not do away with the requirement of an actual case. The
requirement of an actual case is fundamental to the nature of the judiciary.
No less than Justice Vicente V. Mendoza implied that the rigorous requirement of an actual case or
controversy is determinative of the nature of the judiciary. Thus:
[i]nsistence on the existence of a case or controversy before the judiciary undertakes a review of legislation
gives it the opportunity, denied to the legislature, of seeing the actual operation of the statute as it is
applied to actual facts and thus enables to it to reach sounder judgment.53
In the recent case of Belgica, et al. v. Executive Secretary, we pointed out:54
[b]asic in litigation raising constitutional issues is the requirement that there must be an actual case or
controversy. This Court cannot render an advisory opinion. We assume that the Constitution binds all other
constitutional departments, instrumentalities, and organs. We are aware that in the exercise of their various
powers, they do interpret the text of the Constitution in the light of contemporary needs that they should
address. A policy that reduces this Court to an adviser for official acts by the other departments that have
not yet been done would unnecessarily tax our resources. It is inconsistent with our role as final arbiter and
adjudicator and weakens the entire system of the Rule of Law. Our power of judicial review is a duty to
make a final and binding construction of law. This power should generally be reserved when the
departments have exhausted any and all acts that would remedy any perceived violation of right. The
rationale that defines the extent of our doctrines laying down exceptions to our rules on justiciability are
clear: Not only should the pleadings show a convincing violation of a right, but the impact should be shown
to be so grave, imminent, and irreparable that any delayed exercise of judicial review or deference would
undermine fundamental principles that should be enjoyed by the party complaining or the constituents that
they legitimately represent.
The requirement of an “actual case,” thus, means that the case before this Court “involves a conflict of legal
rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be moot or
academic based on extra–legal or other similar considerations not cognizable by a court of justice.”
Furthermore, “the controversy needs to be definite and concrete, bearing upon the legal relations of parties
who are pitted against each other due to their adverse legal interests.” Thus, the adverse position of the
parties must be sufficient enough for the case to be pleaded and for this Court to be able to provide the
parties the proper relief/s prayed for.
The requirement of an ‘actual case’ will ensure that this Court will not issue advisory opinions. It prevents us
from using the immense power of judicial review absent a party that can sufficiently argue from a standpoint
with real and substantial interests.55
Regretfully, the ponencia takes inconsistent positions as to whether the petitions do allege actual cases. On
the issue of the violation of the right to health under Section 9 of the law,56 he correctly held that the
constitutional challenge is premature:
x x x not a single contraceptive has yet been submitted to the FDA pursuant [to the] RH Law. It
[behooves] the Court to await its determination which drugs or devices are declared by the FDA as safe, it
being the agency tasked to ensure that food and medicines available to the public are safe for public
consumption. x x x Indeed, the various kinds of contraceptives must first be measured up to the
constitutional yardstick x x x to be determined as the case presents itself.57 (Emphasis in the original)
Moreover, the ponencia also correctly held that a discussion on the constitutionality of Section 14 of the law,
pertaining to the teaching of Age– and Development–Appropriate Reproductive Health Education,58 is not yet
ripe for determination:
x x x any attack on the validity of Section 14 of the RH Law is premature, as the Department of Education,
Culture and Sports have yet to formulate any curriculum on age–appropriate reproductive health education.
At this point, one can only speculate [on the] contents, manner and medium of instruction that would be
used to educate the adolescents and whether [these] would contradict the religious beliefs of petitioners,
and validate their apprehensions. x x x.
xxxx
While the Court notes the possibility that educators could raise their objection to their participation in the
reproductive health education program provided under Section 14 of the RH Law on the ground that the
same violates their religious beliefs, the Court reserves its judgment should an actual case be filed before
it.59(Emphasis in the original)
Unfortunately, the ponencia failed to discuss how several provisions of the RH Law became vulnerable to a
facial attack, whereas other provisions must await an actual case or controversy to pass upon its
constitutionality. The ponencia explained that the:
x x x foregoing petitions have seriously alleged that the constitutional human right to life, speech and
religion and other fundamental rights mentioned above have been violated by the assailed legislation, the
Court has authority to take cognizance of these kindred petitions and determine if the RH Law can indeed
pass constitutional scrutiny.60
I restate, for purposes of emphasis, parts of my disquisition on facial challenges in my dissenting and
concurring opinion in Disini v. Secretary of Justice.61 After all, the challenges to this present law and the
Cybercrime Prevention Act of 2012 are the public’s reaction to the increasingly liberal but disturbing
treatment that we have given on the issue of rigorous analysis for the justiciability of controversies brought
before us.
The invalidation of the statute is either “on its face” or “as applied.” The only instance when a facial review
of the law is not only allowed but also essential is “when the provisions in question are so broad that
there is a clear and imminent threat that actually operates or it can be used as a prior restraint of
speech.”62
In Cruz v. Secretary of Environment and Natural Resources,63 Justice Vicente V. Mendoza explained the
difference of an “as applied” challenge from an “on its face” challenge:
The only instance where a facial challenge to a statute is allowed is when it operates in the area
of freedom of expression. In such instance, the overbreadth doctrine permits a party to challenge the
validity of a statute even though as applied to him it is not unconstitutional but it might be if applied to
others not before the Court whose activities are constitutionally protected. Invalidation of the statute “on
its face” rather than “as applied” is permitted in the interest of preventing a “chilling” effect on
freedom of expression. But in other cases, even if it is found that a provision of a statute is
unconstitutional, courts will decree only partial invalidity unless the invalid portion is so far inseparable from
the rest of the statute that a declaration of partial invalidity is not possible.64 (Emphasis supplied)
Subsequently, in Estrada v. Sandiganbayan,65 Justice Mendoza culled a more extensive rule regarding facial
or “on its face” challenges, thus:
[a] facial challenge is allowed to be made to a vague statute and to one which is overbroad
because of possible “chilling effect” upon protected speech. The theory is that “[w]hen statutes
regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for
rehabilitating the statutes in a single prosecution, the transcendent value to all society of
constitutionally protected expression is deemed to justify allowing attacks on overly broad
statutes with no requirement that the person making the attack demonstrate that his own
conduct could not be regulated by a statute drawn with narrow specificity.” The possible harm to
society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the
protected speech of others may be deterred and perceived grievances left to fester because of possible
inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting
from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be
prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot
take chances as in the area of free speech.
The overbreadth and vagueness doctrines then have special application only to free speech
cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it,
in an opinion by Chief Justice Rehnquist, “we have not recognized an ‘overbreadth’ doctrine
outside the limited context of the First Amendment.” In Broadrick v. Oklahoma, the Court ruled that
“claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek
to regulate only spoken words” and, again, that “overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct.”
For this reason, it has been held that “a facial challenge to a legislative Act is … the most difficult challenge
to mount successfully, since the challenger must establish that no set of circumstances exists under which
the Act would be valid.” x x x.
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for
testing “on their faces” statutes in free speech cases or, as they are called in American law, First
Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that “one to whom application of a statute is constitutional
will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to
other persons or other situations in which its application might be unconstitutional.” x x x.66 (Emphasis
supplied)
Similarly, this court in Prof. David v. Pres. Macapagal–Arroyo67 laid down guides when a facial challenge may
be properly brought before this court, thus:
First and foremost, the overbreadth doctrine is an analytical tool developed for testing “on their faces”
statutes in free speech cases, also known under the American Law as First Amendment cases.
xxxx
Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to
regulate only “spoken words” and again, that “overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are sought to be applied to protected
conduct.” Here, the incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not free
speech, which is manifestly subject to state regulation.
Second, facial invalidation of laws is considered as “manifestly strong medicine,” to be used “sparingly
and only as a last resort,” and is “generally disfavored;” The reason for this is obvious. Embedded in
the traditional rules governing constitutional adjudication is the principle that a person to whom a law may
be applied will not be heard to challenge a law on the ground that it may conceivably be applied
unconstitutionally to others, i.e., in other situations not before the Court. A writer and scholar in
Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an exception to some
of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute
is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its improper applications on a case to case
basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and can
only assert their own interests. In overbreadth analysis, those rules give way; challenges are
permitted to raise the rights of third parties; and the court invalidates the entire statute “on its face,”
not merely “as applied for” so that the overbroad law becomes unenforceable until a properly authorized
court construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory
rules is the concern with the “chilling;” deterrent effect of the overbroad statute on third parties not
courageous enough to bring suit. The Court assumes that an overbroad law’s “very existence may cause
others not before the court to refrain from constitutionally protected speech or expression.” An overbreadth
ruling is designed to remove that deterrent effect on the speech of those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP 1017
and pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but on the
assumption or prediction that its very existence may cause others not before the Court to refrain from
constitutionally protected speech or expression. In Younger v. Harris, it was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on the legislative process of
the relief sought, and above all the speculative and amorphous nature of the required line–by–
line analysis of detailed statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for
deciding constitutional questions, whichever way they might be decided.
And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount
successfully, since the challenger must establish that there can be no instance when the assailed law
may be valid. Here, petitioners did not even attempt to show whether this situation exists.68 (Emphasis in
the original)
A similar view was adopted by this court in Romualdez v. Hon. Sandiganbayan69 and Spouses Romualdez v.
Commission on Elections.70 Unfortunately, in resolving the motion for reconsideration in Spouses Romualdez
v. Commission on Elections,71 this court seemed to have expanded the scope of the application of facial
challenges. Hence:
x x x. The rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other
fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected to a
facial challenge.72
However, the basic rule was again restated in Southern Hemisphere Engagement Network, Inc. v. Anti–
Terrorism Council:73
Distinguished from an as–applied challenge which considers only extant facts affecting real litigants,
a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the
basis of its actual operation to the parties, but also on the assumption or prediction that its very existence
may cause others not before the court to refrain from constitutionally protected speech or activities.
Justice Mendoza accurately phrased the subtitle in his concurring opinion that the vagueness and
overbreadth doctrines, as grounds for a facial challenge, are not applicable to penal laws. A litigant
cannot thus successfully mount a facial challenge against a criminal statute on either vagueness
or overbreadth grounds.
The allowance of a facial challenge in free speech cases is justified by the aim to avert the “chilling effect” on
protected speech, the exercise of which should not at all times be abridged. As reflected earlier, this
rationale is inapplicable to plain penal statutes that generally bear an “in terrorem effect” in deterring
socially harmful conduct. In fact, the legislature may even forbid and penalize acts formerly considered
innocent and lawful, so long as it refrains from diminishing or dissuading the exercise of constitutionally
protected rights.
The Court reiterated that there are “critical limitations by which a criminal statute may be challenged” and
“underscored that an ‘on–its–face’ invalidation of penal statutes x x x may not be allowed.”
[T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other
fundamental rights may be facially challenged. Under no case may ordinary penal statutes be
subjected to a facial challenge. The rationale is obvious. If a facial challenge to a penal statute is
permitted, the prosecution of crimes may be hampered. No prosecution would be possible. A strong criticism
against employing a facial challenge in the case of penal statutes, if the same is allowed, would effectively
go against the grain of the doctrinal requirement of an existing and concrete controversy before judicial
power may be appropriately exercised. A facial challenge against a penal statute is, at best, amorphous and
speculative. It would, essentially, force the court to consider third parties who are not before it. As I have
said in my opposition to the allowance of a facial challenge to attack penal statutes, such a test will impair
the State’s ability to deal with crime. If warranted, there would be nothing that can hinder an accused from
defeating the State’s power to prosecute on a mere showing that, as applied to third parties, the penal
statute is vague or overbroad, notwithstanding that the law is clear as applied to him.
It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a facial
kind of challenge and, owing to the given rationale of a facial challenge, applicable only to free
speech cases.
By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot
areas of protected speech, inevitably almost always under situations not before the court, that are
impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot be
properly analyzed for being substantially overbroad if the court confines itself only to facts as applied to the
litigants.
xxxx
In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases, observed that
the US Supreme Court has not recognized an overbreadth doctrine outside the limited context of the First
Amendment, and that claims of facial overbreadth have been entertained in cases involving statutes which,
by their terms, seek to regulate only spoken words. In Virginia v. Hicks, it was held that rarely, if ever, will
an overbreadth challenge succeed against a law or regulation that is not specifically addressed
to speech or speech–related conduct. Attacks on overly broad statutes are justified by the “transcendent
value to all society of constitutionally protected expression.”74 (Emphasis and underscoring in the original)
The prevailing doctrine today is that:
a facial challenge only applies to cases where the free speech and its cognates are asserted before the court.
While as a general rule penal statutes cannot be subjected to facial attacks, a provision in a statute can be
struck down as unconstitutional when there is a clear showing that there is an imminent possibility that its
broad language will allow ordinary law enforcement to cause prior restraints of speech and the value of that
speech is such that its absence will be socially irreparable.75
Broken down into its elements, a facial review should only be allowed when:
First, the ground for the challenge of the provision in the statute is that it violates freedom of expression or
any of its cognates;
Second, the language in the statute is impermissibly vague;
Third, the vagueness in the text of the statute in question allows for an interpretation that will allow prior
restraints;
Fourth, the “chilling effect” is not simply because the provision is found in a penal statute but because there
can be a clear showing that there are special circumstances which show the imminence that the provision
will be invoked by law enforcers;
Fifth, the application of the provision in question will entail prior restraints; and
Sixth, the value of the speech that will be restrained is such that its absence will be socially irreparable. This
will necessarily mean balancing between the state interests protected by the regulation and the value of the
speech excluded from society.76
Facial challenges can only be raised on the basis of overbreadth and not on vagueness. Southern
Hemisphere demonstrated how vagueness relates to violations of due process rights, whereas facial
challenges are raised on the basis of overbreadth and limited to the realm of freedom of expression.
None of these petitions justify a facial review of this social legislation. The free exercise of one’s religion
may be a cognate of the freedom of expression. However, the petitions have not properly alleged the
religion, the religious dogma, the actual application of the religious dogma where a repugnancy can be
shown. They have also failed to demonstrate that the violation of the amorphous religious dogmas that they
imagine should result in the invalidation of statutory text rather than simply an adjustment in its
interpretation and in its application.
II
No Locus Standi
Besides, the consolidated cases are improper class suits that should be dismissed outright.
A class suit is allowed under the rules77 if those who instituted the action are found to be sufficiently
numerous and representative of the interests of all those they seek to represent. They must be so numerous
that it would be impractical to bring them all to court or join them as parties. Lastly, a common interest in
the controversy raised must be clearly established.78
These requirements afford protection for all those represented in the class suit considering that this court’s
ruling will be binding on all of them. We should be especially cautious when the class represented by a few
in an alleged class suit is the “entire Filipino Nation” or all the adherents of a particular religion. This court
must be convinced that the interest is so common that there can be no difference in the positions and points
of view of all that belong to that class. Anything less than this standard will be an implied acceptance that in
this important adjudication of alleged constitutional rights, the views of a few can be imposed on the many.
In the 1908 case of Ibañes v. Roman Catholic Church,79 13 plaintiffs filed the complaint for themselves and
on behalf of the other inhabitants of the town of Ternate against the Roman Catholic Church for the
proprietorship of an image of the Holy Child.80 This court held that the action could not be maintained.
It sufficiently appears from the record in this case that it is a controversy between the Roman Catholic
Church on one side and the Independent Filipino Church on the other. That it is the purpose of the plaintiffs,
if they secure possession of the image, to place it in the chapel of the Independent Church is also very
clear. What number of the inhabitants of the town (2,460 according to the census) are members
of the Roman Catholic Church and what part are members of the Independent Filipino Church
does not appear. But it is very apparent that many of the inhabitants are opposed to the transfer
of the image from the Roman Catholic Church. Under the circumstances, the thirteen plaintiffs do
not fairly represent all of the inhabitants of the town. Their interest and the interests of some of
the others are diametrically opposed. For this reason this action can not be
maintained.81 (Emphasis supplied)
In the 1974 case of Mathay v. Consolidated Bank and Trust Co.,82 this court affirmed the dismissal of a
complaint captioned as a class suit for failure to comply with the requisite that the parties who filed the class
suit must be sufficiently numerous and representative:
The complaint in the instant case explicitly declared that the plaintiffs–appellants instituted the “present
class suit under Section 12, Rule 3, of the Rules of Court in behalf of CMI subscribing stockholders” but did
not state the number of said CMI subscribing stockholders so that the trial court could not infer, much less
make sure as explicitly required by the statutory provision, that the parties actually before it were
sufficiently numerous and representative in order that all interests concerned might be fully protected, and
that it was impracticable to bring such a large number of parties before the court.
xxxx
Appellants, furthermore, insisted that insufficiency of number in a class suit was not a ground for dismissal
of one action. This Court has, however, said that where it appeared that no sufficient
representative parties had been joined, the dismissal by the trial court of the action, despite the
contention by plaintiffs that it was a class suit, was correct.83 (Emphasis supplied)
In Re: Request of the Heirs of the Passengers of Doña Paz,84 a class suit was filed by 27 named plaintiffs on
behalf and in representation of “the approximately 4,000 persons x x x (who also) are all close relatives and
legal heirs of the passengers of the Doña Paz.”85 This court distinguished class suits86 from permissive
joinder of parties:87
x x x. What makes the situation a proper case for a class suit is the circumstance that there is only one right
or cause of action pertaining or belonging in common to many persons, not separately or severally to
distinct individuals.
xxxx
The other factor that serves to distinguish the rule on class suits from that of permissive joinder of parties
is, of course, the numerousness of parties involved in the former. The rule is that for a class suit to be
allowed, it is needful inter alia that the parties be so numerous that it would be impracticable to bring them
all before the court.88
Finding that the case was improperly brought as a class suit, this court concluded that “it follows that the
action may not be maintained by a representative few in behalf of all the others.”89 Consequently, this court
denied the authority to litigate in the form of a class suit.90
This ruling was again emphasized in Bulig–Bulig Kita Kamag–anak Association v. Sulpicio Lines,
Inc.,91 making the ratio decidendi in Re: Request of the Heirs of the Passengers of Doña Paz binding
precedent.92 These cases have been cited in a more recent jurisprudence in its discussion on the need to
sufficiently represent all interests for a class suit to prosper.93
MVRS Publications, Inc. et al. v. Islamic Da’wah Council of the Philippines, Inc. et al.94 emphasized how
adequacy of representation in a class suit is important in fully protecting the interests of those concerned:
In any case, respondents’ lack of cause of action cannot be cured by the filing of a class suit. As correctly
pointed out by Mr. Justice Jose C. Vitug during the deliberations, “an element of a class suit is the adequacy
of representation. In determining the question of fair and adequate representation of members of a class,
the court must consider (a) whether the interest of the named party is coextensive with the interest of the
other members of the class; (b) the proportion of those made parties as it so bears to the total membership
of the class; and, (c) any other factor bearing on the ability of the named party to speak for the rest of the
class.
The rules require that courts must make sure that the persons intervening should be sufficiently numerous
to fully protect the interests of all concerned. In the present controversy, Islamic Da'wah Council of the
Philippines, Inc., seeks in effect to assert the interests not only of the Muslims in the Philippines but of the
whole Muslim world as well. Private respondents obviously lack the sufficiency of numbers to represent such
a global group; neither have they been able to demonstrate the identity of their interests with those they
seek to represent. Unless it can be shown that there can be a safe guaranty that those absent will be
adequately represented by those present, a class suit, given its magnitude in this instance, would be
unavailing.95
Class suits require that there is a possibility that those represented can affirm that their interests are
properly raised in a class suit. The general rule must be that they be real and existing. In constitutional
adjudication, this court must approach class suits with caution; otherwise, future generations or an
amorphous class will be bound by a ruling which they did not participate in.
Not all these elements for a proper class suit are present in the petitions filed in these cases.
Petitioners James M. Imbong and Lovely–Ann C. Imbong, for themselves and in behalf of their minor
children, Lucia Carlos Imbong and Bernadette Carlos Imbong, and Magnificat Child Development Center,
Inc.96 filed their petition “as parents and as a class suit in representation of other parents and individuals
similarly situated.”97 They alleged that they are “Catholics who have deeply–held religious beliefs upon
which Faith their conscience is rooted against complying with the mandates of the Act.”98
Four persons and a juridical entity cannot be considered as sufficiently numerous and representative of the
interests of “all other parents and individuals similarly situated.”
Petitioners Alliance for the Family Foundation, Inc. (ALFI), represented by its President, Maria Concepcion S.
Noche, Spouses Reynaldo S. Luistro & Rosie B. Luistro, et al.99invoked Oposa v. Factoran, Jr. in filing their
petition “on behalf of all generations of Filipinos yet unborn, who are in danger of being deprived of the right
to life by R.A. No. 10354.”100
The required common interest in the controversy can neither be determined nor proven in this case if those
to be represented are yet to be born.
It is true that in Oposa v. Factoran, Jr.,101 intergenerational suits were introduced in our jurisdiction.
However, this case must not be abused out of its context. Oposa is a novel case involving an environmental
class suit. This environmental case involved minor petitioners who filed a complaint for the cancellation of all
existing timber license agreements in the country. They were allowed to sue on behalf of future generations
on the ground of “intergenerational responsibility,” in relation to the constitutional right to a balanced and
healthful ecology.102 The state of our ecology will certainly affect future generations regardless of ideology,
philosophy or standpoints.
On the other hand, those who will only be born in the future may have different views regarding the various
policy approaches on responsible parenthood and reproductive health. Hence, the commonality of the
interest that will justify the presumption that the legal positions will be the same is not present.
In its petition, Task Force for Family and Life Visayas, Inc.103 alleged that it is “an association of men and
women who have committed themselves to the protection of family and life, sanctity of marriage x x
x.”104 Its members are “Roman Catholics by faith” and are “spread throughout the Visayan region.”105 The
petitioners collectively seek relief “from the impending threat against their children, their respective families
and the entire Filipino nation, their religious freedom and other constitutional rights they foresee and make
known in this petition.”106
Petitioners, by no stretch of the imagination, cannot be representative of the interests of “the entire Filipino
nation.” Not all Filipinos are Roman Catholics. Not all Filipinos are from the Visayas. Certainly not all Filipinos
have a common interest that will lead to a common point of view on the constitutionality of the various
provisions of the RH law.
Serve Life Cagayan de Oro City, Inc., represented by Dr. Nestor B. Lumicao, M.D. as President and in his
personal capacity, Rosevale Foundation, Inc., represented by Dr. Rodrigo M. Alenton, M.D. as member of the
school board and in his personal capacity, Rosemarie R. Alenton, Imelda G. Ibarra, CPA, Lovenia P. Naces,
Ph.D., Anthony G. Nagac, Earl Anthony C. Gambe, and Marlon I. Yap also filed a petition consolidated with
these cases.107
The individual petitioners alleged they are medical practitioners, members of the bar, educators, and various
professionals who filed this petition “as parents and as a class suit in representation of other parents and
individuals similarly situated.”108 They are “devout and practicing Catholics whose religious beliefs find the
mandatory provisions of the RH law obnoxious and unconscionable.”109
The basis for representing Catholics because their religious beliefs find the RH law obnoxious and
unconscionable is not shared by all Catholics. Again, the class is improperly defined and could not withstand
judicial scrutiny. Their views may not be representative of the entire class they seek to represent.
Spouses Francisco S. Tatad and Maria Fenny C. Tatad and Alan F. Paguia alleged that they are representing,
themselves, their posterity, and the rest of Filipino posterity.110 They instituted their action “in their capacity
as concerned citizens, taxpayers, parents, grandparents, biological ancestors of all their descendants, born
and unborn, conceived or not yet conceived, up to their remotest generation in the future within the context
of Filipino posterity under the 1987 Constitution.”111
Three individual petitioners cannot be considered as sufficiently numerous and representative of the
interests “of the rest of Filipino posterity.” There is no showing that future Filipinos will accept their point of
view. No one can be certain of the interest of Filipinos in the future. No one can be certain that even their
descendants will agree with their position. Consequently, a common interest on the controversy with future
Filipinos cannot be established.
In fact, petitioners Couples for Christ Foundation, Inc., et al.112 confirmed the existence of divergent
opinions on the RH law among Filipinos when it stated that “the Filipino people, of whom majority are
Catholics, have a strong interest in the final resolution of the issues on reproductive health, which has
divided the nation for years.” 113
Pro–Life Philippines Foundation, Inc., represented by Lorna Melegrito as Executive Director and in her
personal capacity, Joselyn B. Basilio, Robert Z. Cortes, Ariel A. Crisostomo, Jeremy I. Gatdula, Cristina A.
Montes, Raul Antonio A. Nidot, Winston Conrad B. Padojinog, and Rufino L. Policarpio III also filed a
petition.114
The individual petitioners instituted this action “as parents, and as a class suit in representation of other
parents and individuals similarly situated.”115 They alleged that the RH law is “oppressive, unjust,
confiscatory and discriminatory specifically against herein petitioners – as parents, professionals, and faithful
of the Catholic Church.”116
Again, there is no showing that these individual petitioners are sufficiently numerous and representative of
the interests of those they seek to represent.
The rationale for the dismissal of actions in these types of class suits is far from merely procedural. Since
petitioners claim representation, the argument that they bring as well as the finality of the judgment that
will be rendered will bind their principals. An improperly brought class suit, therefore, will clearly violate the
due process rights of all those in the class. In these cases, certainly the entire Filipino nation, all the
descendants of petitioners, all Catholics, and all the unborn will be bound even though they would have
agreed with respondents or the intervenors.
Being improperly brought as class suits, these petitions should be dismissed.
Besides this infirmity, some of the petitions included the Office of the President as party respondent.117 Also
on this basis, these petitions should be dismissed.
A sitting president cannot be sued.118 This immunity exists during the President’s incumbency only. The
purpose is to preserve the dignity of the office that is necessary for its operations as well as to prevent any
disruption in the conduct of official duties and functions.119 Without this immunity, a proliferation of suits
would derail the focus of the office from addressing the greater needs of the country to attending each and
every case filed against the sitting President, including the petty and harassment suits.
The doctrine of presidential immunity is not a surrender of the right to demand accountability from those
who hold public office such as the President. The Constitution enumerates the grounds when a President
may be impeached.120 This immunity is also no longer available to a non–sitting President. After the end of
his or her tenure, he or she can be made criminally and civilly liable in the proper case.121
III
The Right to Life
Petitioners raise the issue of right to life under Article III, Section 1 of the Constitution in relation to the
policy of equal protection of the life of the mother and of the unborn under Article II, Section 12. In this
context, the right to life is viewed as the right to a corporeal existence.
The constitutional right to life has many dimensions. Apart from the protection against harm to one’s
corporeal existence, it can also mean the “right to be left alone”. The right to life also congeals the
autonomy of an individual to provide meaning to his or her life. In a sense, it allows him or her sufficient
space to determine quality of life. A law that mandates informed choice and proper access for reproductive
health technologies should not be presumed to be a threat to the right to life. It is an affirmative guarantee
to assure the protection of human rights.
The threat to corporeal existence
The policy taken by the law against abortion is clear. In the fifth paragraph of Section 2,122 the law
provides:
The State likewise guarantees universal access to medically safe, non–abortifac[i]ent, effective, legal,
affordable, and quality reproductive health care services, methods, devices, supplies which do not prevent
the implantation of a fertilized ovum as determined by the Food and Drug Administration (FDA) and relevant
information and education thereon according to the priority needs of women, children and other
underprivileged sectors x x x. (Emphasis supplied)
Section 3,123 paragraph (d) likewise emphasizes the following as a guiding principle of implementation:
(d) The provision of ethical and medically safe, legal, accessible, affordable, non–abortifac[i]ent, effective
and quality reproductive health care services and supplies is essential in the promotion of people’s right to
health, especially those of women, the poor and the marginalized, and shall be incorporated as a component
of basic health care[.] (Emphasis supplied)
Then, subparagraph (j) of the same section in this law states:
(j) While this Act recognizes that abortion is illegal and punishable by law, the government shall
ensure that all women needing care for post–abortive complications and all other complications from
pregnancy, labor and delivery and related issues shall be treated and counseled in a humane,
nonjudgmental and compassionate manner in accordance with law and medical ethics[.] (Emphasis
supplied)
Section 9124 of the law provides:
Sec. 9. The Philippine National Drug Formulary System and Family Planning Supplies. – The National Drug
Formulary shall include hormonal contraceptives, intrauterine devices, injectibles and other safe,
legal, non–abortifac[i]ent and effective family planning products and supplies. x x x. (Emphasis supplied)
Section 4, paragraph (a) of Republic Act No. 10354 defines abortifacient as:
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside the
mother’s womb or the prevention of the fertilized ovum to reach and be implanted in the mother’s womb
upon determination of the FDA.
This should have been sufficient to address the contention by petitioners that the law violates the right to
life and that right to life means the right to a corporeal existence.
The ponencia found that the law was “consistent with the Constitution”125 because it “prohibits any drug or
device that induces abortion” 126 and because it “prohibits any drug or device [that prevents] the fertilized
ovum to reach and be implanted in the mother’s womb.”127
When life begins, not an issue.
However, the court cannot make a declaration of when life begins. Such declaration is not necessary and is
a dictum that will unduly confuse future issues.
First, there is, as yet, no actual controversy that can support our deliberation on this specific issue.
Second, the court cannot rely on the discussion of a few commissioners during the drafting of the
constitution by the Constitutional Commission.
In Civil Liberties Union v. Executive Secretary,128 this court noted:
A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the
object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied.
A doubtful provision will be examined in the light of the history of the times, and the condition and
circumstances under which the Constitution was framed. The object is to ascertain the reason which induced
the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished
thereby, in order to construe the whole as to make the words consonant to that reason and calculated to
effect that purpose.129
However, in the same case, this court also said:130
While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional
convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be
had only when other guides fail as said proceedings are powerless to vary the terms of the Constitution
when the meaning is clear. Debates in the constitutional convention “are of value as showing the
views of the individual members, and as indicating the reasons for their votes, but they give us
no light as to the views of the large majority who did not talk, much less of the mass of our
fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We
think it safer to construe the constitution from what appears upon its face.” The proper
interpretation therefore depends more on how it was understood by the people adopting it than
in the framers’s understanding thereof. 131 (Emphasis supplied)
The meaning of constitutional provisions should be determined from a contemporary reading of
the text in relation to the other provisions of the entire document. We must assume that the
authors intended the words to be read by generations who will have to live with the
consequences of the provisions. The authors were not only the members of the Constitutional
Commission but all those who participated in its ratification. Definitely, the ideas and opinions
exchanged by a few of its commissioners should not be presumed to be the opinions of all of
them. The result of the deliberations of the Commission resulted in a specific text, and it is that
specific text—and only that text—which we must read and construe.
The preamble establishes that the “sovereign Filipino people” continue to “ordain and promulgate” the
Constitution. The principle that “sovereignty resides in the people and all government authority emanates
from them”132 is not hollow. Sovereign authority cannot be undermined by the ideas of a few Constitutional
Commissioners participating in a forum in 1986 as against the realities that our people have to face in the
present.
There is another, more fundamental, reason why reliance on the discussion of the Constitutional
Commissioners should not be accepted as basis for determining the spirit behind constitutional provisions.
The Constitutional Commissioners were not infallible. Their statements of fact or status or their inferences
from such beliefs may be wrong. This is glaringly true during their discussions of their reasons for
supporting the formulation of Article II, Section 12 of the Constitution.133
It cannot be contended that the exact moment when life begins was a settled matter for the Constitutional
Commissioners. This is just one reading of their discussions.
For Commissioner Bernas, the reason for extending right to life to a fertilized ovum134 was to “prevent the
Supreme Court from arriving at a x x x conclusion” similar to Roe v. Wade.135 In the process, he explained
his ideas on the beginning of life:
FR. BERNAS: x x x The intent of this addition is to preclude the Supreme Court from following the United
States doctrine which does not begin to weigh the life of the unborn against that of the mother until the
fetus has reached a viable stage of development. In American doctrine, during the first six months of
pregnancy, the only requirement for allowing abortion is that it will not be harmful to the mother. It is only
after the sixth month that the life of the fetus begins to be weighed against the life of the mother.
The innovation does not say that from the first moment the sperm and the egg shake hands,
human life is already present, much less does it say that at that moment, a soul is infused; nor does the
innovation say that the right to life of the fertilized ovum must prevail over the life of the mother all the
time. All that the innovation says is that from the moment of fertilization, the ovum should be treated as life
whose worth must be weighed against the life of the woman, not necessarily saying that they are of equal
worth.136
x x x. The Argument in Roe v. Wade is that the important thing is the privacy of the mother’s womb. If she
wants to get rid of that fetus anytime within the first six months, it is allowed provided it can be done safely
even if there is no medical reason for it. That is the only thing contemplated in this.137
However, despite Fr. Bernas’ statement on the proposed inclusion of “[t]he right to life extends to the
fertilized ovum” in Section 1 of the Bill of Rights, Bishop Bacani stated that human life already existed at the
time of conception:
BISHOP BACANI: The formulation reached by the Committee was “fertilized ovum,” to precisely define what
we meant. And it will be brought forward in another committee report that the right to life begins with
conception. That is meant to explain what is understood on the committee report by the word “conception.”
The Gentleman was asking whether this is a human person. That is not the assertion yet of this section. But
what we do assert is this, that this is human life already. If I may be allowed to read the results of the
report by Fr. Robert Henley, who is also a Jesuit like Fr. Bernas, it seems they are in all camps. Let me just
read this into the record. He says:
Specializing as it does in fetal physiology, Georgetown University, probably more than almost any other
university, is aware of the biological facts regarding the beginnings of human life.
From the moment of conception a new biological entity exists. The entity cannot be considered as physically
identical with the mother’s body. To consider the matter broadly, there is no essential difference between an
ovum fertilized within the body and an ovum fertilized outside the parent’s body or rejected in an egg or
emerging undeveloped, as in marsupials, in an external pouch. To destroy this entity is to destroy an
existing life. Since this life entity is clearly within the development of the human species, there is
obviously nothing added on a human being. Its destruction is the destruction of human life. Murder
cannot be justified by a legal fiction. 138
Further in the deliberations on this issue, Ms. Felicitas Aquino* propounded some concerns:
MS. AQUINO: Madam President, before the issue on the right to life is lost in the interdebate on the vexing
question of the U.S. bases, I am intervening to settle some matters about the matter of the right to life.
I am very much alarmed by the absolutist claim to morality in the defense of human life, the defense that
was raised by Commissioner Villegas. There is presently a raging debate on the philo–ethical considerations
of the origin or the beginnings of human life that at this moment, I do not think we are in any position to
preempt the debate and come up with a premature conclusion on the matter. There are still pressing
questions in my mind, such as: Is the biological existence of a potentiality for life synonymous with human
personality? Is viability synonymous with life? There are at least a dozen theories that attempt to address
themselves to this kind of question. For example, we are aware of the Thomistic concept of hylomorphism
which posits the complementarity of matter and form. The theory demands that before human life is
assumed, the material body demands a certain measure of organization and form that makes it capable of
receiving a soul. It operates on the premise that individuality is the basic premise and the fundamental
criterion for human life and human personality and individuality requires consciousness and self–reflection.
There is another theory which states that human life begins two to three weeks after conception; that is
after the possibility on the process of twinning the zygote or the recombination of the zygote is finally ruled
out. These are questions that need to be addressed in our Civil Code. For example, in the context of this
discussion, Articles 40 and 41 are settled that personality is determined by birth, and that for all purposes
favorable to it, a conceived baby is considered born but subject to the conditions of Article 41 which says
that personality is determined by live birth. I would think that Articles 40 and 41 are not only settled, but
are the most practical approach to the raging debate on the matter of human life. It lays as the criteria for
its conclusion the individual biological criteria, with special emphasis on the physical separation of the fetus
from the mother and the requirements of viability.
I am alarmed by the way we tend to preempt this kind of discussion by invoking the claims of the
righteousness of morality. These questions for me are transcendental that we cannot even attempt to
address any conclusion on the matter unless we can address the question without temerity or without
bigotry. Besides, the level of human knowledge on this debate is so severely restricted that to preempt the
debate is, I guess, to preempt the deliberations and finally the possibility of agreement on the diverse
theories on the matter.139
In response, Mr. Villegas dismissed the concerns and declared that the issue of the beginning of life is
already settled.
MR. VILLEGAS: Madam President, it is precisely because this issue is transcendental that we have to make
also a transcendental statement. There is no debate among medical scientists that human life begins
at conception, so that is already a settled question. We are talking about life. As I said, we are not
talking about human personality, neither are we saying that the human person can be decided precisely by
law, nor at what time it will have the right to property and inheritance. The only right that we are
protecting is the right to life at its beginning, which medical science genetics has already
confirmed as beginning at conception.140 (Emphases supplied)
The Constitutional Commission deliberations show that it is not true that the issue of when life begins is
already a settled matter. There are several other opinions on this issue. The Constitutional
Commissioners adopted the term “conception” rather than “fertilized ovum.”
New discoveries in reproductive science, particularly the possibility of cloning, provide basis for the possible
significance of viable implantation in the uterus as the “beginning of life and personhood.” It is at
implantation when a group of cells gain the potential of progressing into a human being without further
intervention.141
There are others who say that human life is defined by the presence of an active brain.142 Without it, there is
no human being.143
Another theory is that human life begins when organs and systems have already been developed and
functioning as a whole, consistent with the idea that death happens upon cessation of organized functions of
these organs and systems.144 Zygote and embryonic stages are merely transitional phases.145
Others suggest that life begins when there is no more possibility of “twinning.”146
There are also those who do not share the moral value and, therefore, the legal protection that can be given
to a fertilized ovum even assuming that that would be the beginning of life.
During the Constitutional Commission deliberations, Rev. Rigos pointed out the need to “consider the
sensibilities of other religious groups.”147 He asked:
REV. RIGOS: x x x. But like a few people who spoke this morning, I am a bit disturbed by the second
sentence: “The right to life extends to the fertilized ovum.”
In discussing this proposed sentence, did the Committee consider the sensibilities of some religious groups
which do not look at the fertilized ovum as having reached that stage that it can be described as human
life?148
Fr. Bernas answered: “Precisely, we used that word to try to avoid the debate on whether or not this is
already human life.” 149
Later, Rev. Rigos asked if the aim of the clause could not be achieved through legislation.150
Bishop Bacani stated the reason for his belief why the matter could not be left to legislation. He said:
x x x. We would like to have a constitutional damper already on the assault to human life at its early stages.
And we realized that it can be possible to more easily change x x x easier to change legislation on abortion.
Hence, we would like to be able to prevent those changes in the laws on abortion later.151
Rev. Rigos pointed out the differing opinions on the commencement of human life. He said that “[i]f we
constitutionalize the beginning of human life at a stage we call fertilized ovum, then we are putting a note of
the finality to the whole debate.”152 To this, Bishop Bacani said that there were people from other religions
who were against abortion. He said:
BISHOP BACANI: I would like to remind Reverend Rigos that when we talk about this, it is not a question of
religious boundaries. In fact, let me just read what is contained in an article given by one of my researchers.
It says that many scholarly Protestant and Jewish leaders are prominent in the pro–light movement – and
they are referring to the anti–abortion movement. I do not want to put this simply on the denominational
plain, and it is misleading to put it at that level.
xxxx
BISHOP BACANI: Because these are people who are not Catholics – who are Jewish, Protestants, even
atheists – but who are against abortion. 153
Rev. Rigos clarified that while Bishop Bacani was correct in describing the Protestant church’s stance against
abortion “on the whole,” “x x x there is a big segment in the Protestant church that wishes to make a clear
distinction between what we call abortion and miscarriage.” 154
A paper published in the Journal of Medical Ethics written by Cameron and Williamson summarizes various
religious views on life’s beginnings.155 It was asserted that “[t]he Bible, the Koran, and the Talmud do not
actually say when life begins, although each has been the subject of various interpretations.”156
The traditional Catholic view is that life begins at fertilization.157 However, even “[w]ithin the Catholic
Church, there are differing views.”158 Cameron and Williamson mentioned subscription “to theories of
‘delayed’ or ‘mediate’ animation” or the infusion of the soul at points after fertilization.159 There are also
arguments that even distinguished theologians like St. Augustine and St. Thomas claim that a fetus
becomes a person only between the 40th to 80th day from conception and not exactly at fertilization.160
Similar to the traditional Catholic view, Buddhism, Sikhism, and Hinduism believe that life begins at
conception.161
Some Muslim scholars, according to Cameron and Williamson, believe that a fetus gains soul only in the
fourth month of pregnancy or after 120 days.162 Other Muslims believe that a six–day embryo is already
entitled to protection.163
The view that life begins at fertilization was supported during the debates in the Constitutional Commission
by the idea that a fertilized ovum always develops into a human life.
Commissioner Ms. Aquino observed:
MS. AQUINO: I cannot. This is very instructive because as the Commissioner will note, even this
Commission cannot settle the question of whether a fertilized egg has the right to life or not. Those experts
in the field of medicine and theology cannot settle this question. It is bad enough for us to pre–empt this
controversial issue by constitutionalizing the ovum; it would be doubly tragic for us to provide for
ambiguities which may even disturb settled jurisprudence.164
Mr. Nolledo answered:
MR. NOLLEDO: I do not think there is ambiguity because the fertilized egg, in the normal course of
events, will be developed into a human being, a fetus, and as long as the normal course of events
is followed. I think that the right to life exists and the Constitution should recognize that right to life. We
do not presume accidents; we do not presume ambiguities. We presume that as long as it is categorized as
a fertilized ovum, it will ripen into human personality.165 (Emphasis supplied)
Unfortunately, this may be wrong science.
There are studies that suggest that a fertilized egg, in the normal course of events, does not develop into a
human being. In Benagiano, et al.’s paper entitled Fate of Fertilized Human Oocytes,166 it was shown that
pre–clinical pregnancy wastage is at least 50%. Some estimate that the chance that pregnancy will proceed
to birth may be as low as about 30%.167 Some causes of this wastage are implantation failure, chromosome
or genetic abnormality, and similar causes. If normalcy is defined by this percentage, then it is pregnancy
wastage that is normal and not spontaneous development until birth. Based on these, there may be no basis
to the presumption that a fertilized ovum will “ripen into human personality” as Mr. Nolledo suggested.
To highlight the fallibility of the Constitutional Commissioners, one of them argued that a fertilized ovum is
human because it is the only species that has 46 chromosomes. Thus:
MR. VILLEGAS: x x x. Is it human? Genetics gives an equally categorical “yes.” At the moment of
conception, the nuclei of the ovum and the sperm rupture. As this happens 23 chromosomes from the ovum
combine with 23 chromosomes of the sperm to form a total of 46 chromosomes. A chromosome count of
46 is found only — and I repeat, only — in human cells. Therefore, the fertilized ovum is human.
(Emphasis supplied)
Since these questions have been answered affirmatively, we must conclude that if the fertilized ovum is both
alive and human, then, as night follows day, it must be human life. Its nature is human.168
MR. VILLEGAS: As I explained in the sponsorship speech, it is when the ovum is fertilized by the sperm that
there is human life. Just to repeat: first, there is obviously life because it starts to nourish itself, it starts to
grow as any living being, and it is human because at the moment of fertilization, the chromosomes that
combined in the fertilized ovum are the chromosomes that are uniquely found in human beings
and are not found in any other living being. 169(Emphasis supplied)
Again, this is factually wrong.
A person who has Down’s Syndrome may have 47 chromosomes.170 Most persons who have Turner’s
Syndrome are one chromosome short or have 45 chromosomes.171 Persons with these conditions are no less
human than persons with 46 chromosomes. Meanwhile, there are also known species which have 46
chromosomes other than humans. A Reeves’ Muntjac, for example, has 46 chromosomes.172
Then, there was the claim that the instances when there had to be a choice made between the life of the
mother and the life of the zygote, fetus or child were few.
Mr. Villegas asserted:
MR. VILLEGAS: As I stated in my sponsorship speech, 99 percent of the cases indicated that taking care of
the health of the mother is taking care of the child and vice versa. Because of the progress of medical
science, the situations when a moral dilemma exists are very, very few. The intention behind the
statement is precisely for the State to make sure that it protects the life of the pregnant mother. She goes
to all sorts of trouble as we have discussed in the provisions on health. Protecting the life of the mother,
giving her all the necessary social services will protect the child. So it happens only in very, very few
instances which we mentioned, like ectopic pregnancies when the fertilized ovum is implanted outside of
the uterus. I repeat, medical science has made the situation very, very exceptional.
xxxx
MR. VILLEGAS: Madam President, as I said in response to the question yesterday of Commissioner Suarez,
99 percent of the cases related to protection of the mother’s health, making sure that she is in the right
working conditions and that she is not subjected to stress, show that there are so many things that can
endanger the life of the unborn because the health of the mother is not sufficiently cared for. This is really a
prolife provision which emphasizes the fact that in most instances, protecting the life of the mother is also
protecting the life of the unborn.173 (Emphasis supplied)
Taking care of the mother does not always mean taking care of the zygote, fetus or child. There are
instances wherein in order to protect the life of the mother, the zygote, fetus or child may have to be
sacrificed.
Implantation of the fertilized egg in areas outside the uterus such as the fallopian tube or ovaries may cause
organ rupture and severe loss of blood. To save the mother’s life, surgical removal174 of the fertilized ovum
may be necessary.
Pre–eclampsia/eclampsia or hypertension during pregnancy175 is associated with increased perinatal
mortality.176 It may also result in other complications such as seizures, hemorrhage, or liver or kidney
complications that may be life–threatening.177 It may require premature delivery of the child to prevent
further complications or when the life of the mother is already threatened by seizures or other
complications.178
Meanwhile, pregnant persons who have cancer may have to choose between chemotherapy and risking
harm to the developing embryo or fetus in her womb or not undergoing chemotherapy and risking her
life.179
The Department of Health estimated that more than a thousand women died in 2009 for various causes. It
is observed that most of these causes are the same complications that caused a moral dilemma between
saving the mother and saving the child.180
MATERNAL MORTALITY: BY MAIN CAUSE
Number, Rate/1000 Livebirths & Percent Distribution
Philippines, 2009
CAUSE
Number
Rate
Percent*
TOTAL
1,599
0.9
100.0
1. Complications related to pregnancy
655
occurring in the course of labor, delivery
and puerperium
0.4
41.0
2. Hypertension complicating pregnancy, 513
childbirth and puerperium
0.3
32.1
3. Postpartum hemorrhage
286
0.2
17.9
4. Pregnancy with abortive outcome
142
0.1
8.9
5. Hemorrhage in early pregnancy
3
0.0
0.2
*Percent share to total number of maternal deaths
In asserting that there are only a few instances of moral dilemma during pregnancy, Mr. Villegas insisted on
the application of the doctrine of double effect. He stated:
MR. VILLEGAS: x x x. And we said that even in those instances, which I consider to be less than one percent
of the situation, there is a moral principle which we referred to as the principle of double effect in which if
one has to save the life of the mother in an operation, it is morally and legally permissible to so operate
even if the child will have to be indirectly sacrificed. There is no murder involved there because one does not
intend the death of the child. One is correcting a medical aberration of the mother.
xxxx
MR. VILLEGAS: It is the same principle of double effect. If you are not killing the mother directly, if the
operation is to save the child and there is the indirect effect of the mother’s life being sacrificed, then I think
the principle of double effect also applies.181
The principle of double effect is traceable to Thomas Aquinas in Summa Theologiae.182 It is, therefore, a
Christian principle that may or may not be adopted by all of the members of the medical community. There
are even some who recommend its abandonment.183
A commissioner went on to point out that unwanted children become wanted children in practically all cases.
Thus:
BISHOP BACANI: Madam President, may I comment on the unwanted babies. I was reading this little book
on a study of unwanted pregnancies and the interesting thing is this: In practically all cases, unwanted
pregnancies became wanted babies. In fact, there were more unwanted pregnancies that became wanted
babies than wanted pregnancies in the beginning which turned sour. 184
Again, this claim is belied by the fact that there are reportedly, hundreds of children that are abandoned
every year.185 Apparently, abandonment and neglect are the most common cases of abuse among children,
based on statistics.186 Moreover, statistics shows that there is an average of 16% unwanted births,
according to the 2008 National Demographic and Health Survey.187
Third, a generalized statement that life begins at fertilization of the ovum misunderstands the
present science relating to the reproduction process.
Reproduction is a complex process whose features we need not tackle absent an actual controversy.
Framing the issue as an issue of right to life or the right to protection of the unborn from conception
presupposes a prior conclusive scientific determination of the point when life commenced. It presupposes a
conclusive finding as to the beginning of the existence of the unborn.
The court cannot declare that life begins at fertilization on the basis of a limited set of sources that may not
constitute the consensus among the scientific community.
For the medical bases for the contention that life begins at fertilization some of the petitioners188 cited
medical textbooks and expert opinions. However, some respondents and respondents–intervenors, also had
their own scientific textbooks, journals, and health organization statements to support their opposite
contentions on the difference between fertilization and conception, and the importance of viability and clear
establishment of pregnancy in determining life.189
We can infer from the existence of differing opinions on this issue that reproduction involves a complex
process. Each part of this process provides a viable avenue for contention on the issue of life.
The reproductive process is not always characterized by continuity and spontaneity from fertilization to
birth.
Fertilization happens when a single sperm penetrates the ovum or the egg.190 The body has a mechanism
that prevents “polyspermy” or more than one sperm from penetrating the egg.191 Failure of this mechanism
may cause issues on the viability of the fertilized egg.192
Fertilization is possible only as long as both the sperm and the ova remain alive.193 Sperm have a lifespan of
about three to five days inside a woman’s body,194 while an ovum remains capable of fertilization only about
a few hours to a day after ovulation.195 This means that fertilization can happen only within that specific
period of time. No fertilization within this specific period means that both cells will disintegrate and die.
A fertilized egg stays in the fallopian tube for about three to four days.196 It undergoes several cell
divisions.197 It reaches the uterus usually in its 16– or 32–cell state.198 At this point, each cell resulting from
the divisions is “totipotent” or may be capable of developing into an individual.199
A fertilized egg may enter the uterus to undergo further cell division, until it becomes what is known as a
blastocyst, at which stage the cells lose their totipotentiality and start to differentiate.200 The fertilized egg
may also remain in the fallopian tube or proceed to other organs in the abdomen to undergo the same
process.
About a week from ovulation, the fertilized egg starts to implant itself into the uterus201 or fallopian
tube/other abdominal organs to develop an embryo. The latter case is called ectopic pregnancy. When this
happens, the embryo is not viable and must be surgically removed to prevent maternal
hemorrhage.202 There are times when no surgical removal is necessary because of spontaneous abortion.203
Around the time that the blastocyst starts embedding itself into the uterus, the hormone, chorionic
gonadotropin, is secreted.204 This hormone is detectable in the mother’s blood and urine.205 Pregnancy is
usually determined by detecting its presence.206 Thus, pregnancy is detected only after several days from
fertilization.
Studies suggest that fertilization does not always proceed to a detectable pregnancy.207 Fertilization can
become undetected because the fertilized ovum becomes wastage prior to a finding of pregnancy.208
Every instance of cell division or differentiation is crucial in the reproductive process. Each step is a possible
point of error. An error, especially when it involves the genes, is a possible cause for termination of the
reproductive process.209
It is during the first week after fertilization that the greatest losses appear to occur.210 A review of literature
on the fate of the fertilized egg in the womb estimates that about or at least 50% of fertilized eggs are
wasted or “do[es] not produce a viable offspring.”211
Wastage happens for different and natural reasons, among which are delayed or erroneous implantation and
chromosomal or genetic abnormalities.212 Apparently, a delayed implantation of a fertilized egg into the
uterus, usually more than 12 days from fertilization, may reduce or eliminate the chance that pregnancy will
proceed.213 It is suggested that delayed implantation may be caused by delayed production or relatively low
concentration of the chorionic gonadotropin hormone which leads to the degeneration of the corpus
luteum.214 The corpus luteum produces hormones that are essential to the maintenance of pregnancy
especially during the first months.215 These hormones are responsible for the thickening of the uterine
muscles and the inhibition of uterine motility that will prevent the expulsion of the fetus from the womb.216
The huge percentage of losses of pre–implantation zygote provides basis for the argument that viability is a
factor to consider in determining the commencement of life. These losses are not generally regarded as
deaths of loved ones, perhaps because it occurs naturally and without the knowledge of the woman.
Hence, some217 put greater emphasis on the importance of implantation on this issue than fertilization.
This value is shared by others including the American College of Obstetricians and Gynecologists, Code of
Federal Regulations, and British Medical Association, among others.218
The reproductive process may also show that a fertilized egg is different from what it may become after
individuation or cell specialization.
One argument against the belief that human existence begins at fertilization emphasizes the totipotency of
the pre–implantation zygote.
David DeGrazia, for example, argues that while fertilization is necessary for a person’s existence, it is not
sufficient to consider it as a person.219 At most, the zygote is only a precursor of a person.220 It was stressed
that several days after fertilization, a zygote is not yet uniquely differentiated.221 Hence, it can still divide
into multiple human beings or fuse with other zygotes to produce a chimera.222 This mere possibility,
according to DeGrazia belies the position that a zygote is identical with the individual or individuals that
result from it.223 DeGrazia states:
Consider the zygote my parents produced in 1961, leading to my birth in 1962. I am not an identical twin.
But that zygote could have split spontaneously, resulting in identical twins. If it had, presumably I would not
have existed, because it is implausible to identify me with either of the twins in that counterfactual scenario.
If that is right, then the existence of the zygote my parents produced was not sufficient for my existence,
from which it follows that I am not numerically identical to that zygote. The very possibility of twinning
belies the claim that we originated at conception.224
Further, as argued by DeGrazia, the mere fact that the cells are still subject to differentiation or
individuation “belies the claim that we originated at conception.”225 Imputing moral or human status to an
undifferentiated zygote means that a human (in the form of a zygote) dies every time a zygote multiplies to
form two individuals.226 DeGrazia doubts that many would accept the imagined implications of giving full
moral status to a fertilized ovum: 1) Multiple pregnancy is a cause for mourning because essentially, a life is
given up to produce at least two others; 2) There should be reason to support investments in research for
the prevention of multiple pregnancies.227
DeGrazia characterizes a zygote as a single cell or “colony of cells”228 whose functions are not yet wholly
integrated, unlike in a human being.229
It was also emphasized that the potential to undergo a process that would eventually lead to being a full
human being is not equivalent to being a full human being.230Advancements in technology point to the
possibility of cloning from cells other than the sperm and the egg. Yet, this does not elevate the status of
each cell as in itself a full human being.231 Thus:
Clearly, the single–cell zygote has the potential to develop in such a way that eventually produces one of us.
(Note: I do not say that the single–cell zygote has the potential to become one of us – a statement that
would imply numerical identity.) But the importance of this potential is dubious. Now that we know that
mammals can be cloned from somatic cells – bodily cells other than sperm, eggs, and their stem–cell
precursors – we know that, in principle, each of millions of cells in your body has the potential to develop
into a full human organism. Surely this confers no particular moral status on your many individual cells; nor
does it suggest that each cell is one of us. Once again, a full complement of DNA is not enough to make one
of us.232
The argument that the use of ordinary body cells does not naturally lead to birth, according to DeGrazia,
finds little weight when statistics of pre–implantation wastage is considered.233 Statistics does not support
the view that fertilization naturally leads to birth.234 A fertilized egg still has to undergo several processes
and meet certain conditions before it results to implantation or birth.
Further, there are policy dilemmas resulting from the court’s premature determination of life’s
beginnings.
A corollary of the view that life begins at fertilization is that anything that kills or destroys the fertilized egg
is “abortive.”
The beginning of life is a question which can be most competently addressed by scientists or ethicists. A
Supreme Court declaration of a scientific truth amidst lack of consensus among members of the proper
community is dangerous in many contexts. One example is the occurrence of ectopic pregnancy.
Ectopic pregnancy occurs when the fertilized egg implants into parts or organs other than the
uterus. 235 Ectopic pregnancy usually occurs in the fallopian tube.236 Women who experience ectopic
pregnancy must cause the removal of the developing embryo or she risks internal bleeding and death.237
Ectopic pregnancy can be treated using drugs or surgery depending on the size of the embryo and the status
of the fallopian tube.238 Smaller pregnancy and the inexistence of tubal rupture allow treatment through
medications.239 Medications will stop pregnancy growth without the need for removal of the fallopian tube.240
However, there are instances that necessitate surgical removal of the pregnancy, including the fallopian
tube, to prevent harm to the woman.241
In any case, creating an all encompassing definition of life’s beginnings to “equalize” the protection between
the “unborn” and the mother creates a moral dilemma among the people whether to save the mother from
the risk of life–threatening complications or whether to “save” a fertilized ovum that has no chance of
surviving. This is most especially applicable among those involved such as the mother and the health care
professionals.
Following a declaration in the ponencia that life begins at fertilization, the removal of a fertilized egg in an
ectopic pregnancy must necessarily constitute taking of life. All persons involved in such removal must
necessarily kill a fertilized ovum. A mother or a health care professional who chooses to remove the embryo
to save the mother risks being charged or stigmatized for that conduct.
Similarly, such all encompassing declaration is dangerous especially when applied to fertilizations resulting
from sexual assault or rape.
There are conflicting versions of the mechanisms of action of emergency conception. There are publications,
for example, that find that a single dose of the most widely used emergency contraceptive, levonorgestrel
(LNG) taken within five days of unprotected sex would protect a female from unwanted pregnancy by
delaying or inhibiting ovulation.242Petitioners, on the other hand, believe that emergency contraceptives also
prevent the implantation of a fertilized ovum into the uterus. They also cite distinguished scientific journals
such as the Annals of Pharmacotherapy.243
This lack of public consensus coupled with an official declaration from this court that life begins at
fertilization could immobilize a rape victim from immediately obtaining the necessary emergency medication
should she wish to prevent the unwanted pregnancy while there is still time. It may create ethical pressure
on the victim to assume the repercussions of acts that are not her fault.
Insisting on a determination of when life begins also unnecessarily burdens the ethical dilemma for assisted
reproductive technologies.
Assisted reproductive technologies (ART) refer to “all fertility treatments in which both eggs and sperm are
handled. In general, ART procedures involve surgically removing eggs from a woman’s ovaries, combining
them with sperm in the laboratory, and returning them to the woman’s body or donating them to another
woman. They do NOT include treatments in which only sperm are handled (i.e. intrauterine—or artificial—
insemination) or procedures in which a woman takes medicine only to stimulate egg production without the
intention of having eggs retrieved.”244 Others include among the ART procedures intrauterine insemination,
in vitro fertilization, sperm donation, egg donation, and surrogacy or gestational carrier.245 I focus on in vitro
fertilization.
In in vitro fertilization, the ovaries are stimulated to produce multiple eggs.246 The produced eggs are
retrieved from the woman’s body for insemination.247 A sufficient number of healthy embryos are transferred
to the woman’s womb after fertilization.248 Multiple embryos are sometimes transferred to the womb to
increase the chances of pregnancy, in which case, multiple births are likely to happen.249 Unused healthy
embryos may be frozen for later use or for donation.250 Disposal of embryos is also an option for some.251
The ethical dilemma arises with respect to the unused embryos. A conflict of interest is created between the
fate of the mother and the fate of the embryos. If life begins at fertilization, disposal of surplus embryos
means disposal of several human lives. At the same time, a mother or anyone else cannot be forced to
conceive a child or donate an embryo to another.
I believe that when presented with a like but actual case, it should be the parents who should make the
choice whether to use the surplus embryos or to dispose it if allowed by law.
When exactly life begins is not in issue in this case.
We should avoid this issue because this court lacks the competence to determine scientific, ethical or
philosophical truths. Just as it should not easily accept purported truths propounded by parties to support
their causes for or against reproductive health, this court should also not so easily dismiss views as “devoid
of any legal or scientific mooring” 252 or having been “conceptualized only for convenience by those who had
only population control in mind.”253
The ponencia emphasizes this court’s statement in Continental Steel v. Hon. Accredited Voluntary Arbiter
Allan S. Montano that “a child inside the womb already has life”.254 But Continental Steel involves the issue
of whether respondent in that case was entitled to death and accident insurance claim after his child had
been prematurely delivered at 38 weeks and immediately died.
At 38 weeks, viability is less an issue compared to a fertilized egg. A fertilized egg will still have to
successfully undergo several processes, cell divisions, implantations, and differentiations for a chance at
even developing recognizable fetal tissues. This court said:
Even a child inside the womb already has life. No less than the Constitution recognizes the life of the
unborn from conception, that the State must protect equally with the life of the mother. If the unborn
already has life, then the cessation thereof even prior to the child being delivered, qualifies as
death.255 (Emphasis supplied)
This court was not making a declaration that a fertilized egg already constitutes a child inside a womb and a
declaration as to when life begins. Applied in the context of that case, this court was merely saying that the
38–week, prematurely born child was already a child for purposes of the award of the death and accident
insurance claim under the Collective Bargaining Agreement.
IV
Section 9 and Abortifacient Effects
The petitions, having alleged no actual controversy, also furnish no justification to strike down any portion of
Section 9 of Republic Act No. 10354 as unconstitutional. This provides:
SEC. 9. The Philippine National Drug Formulary System and Family Planning Supplies. – The National Drug
Formulary shall include hormonal contraceptives, intrauterine devices, injectables and other
safe, legal, non–abortifacient and effective family planning products and supplies. The Philippine
National Drug Formulary System (PNDFS) shall be observed in selecting drugs including family planning
supplies that will be included or removed from the Essential Drugs List (EDL) in accordance with existing
practice and in consultation with reputable medical associations in the Philippines. For the purpose of this
Act, any product or supply included or to be included in the EDL must have a certification from
the FDA that said product and supply is made available on the condition that it is not to be used
as an abortifacient.
These products and supplies shall also be included in the regular purchase of essential medicines and
supplies of all national hospitals: Provided, further, That the foregoing offices shall not purchase or acquire
by any means emergency contraceptive pills, postcoital pills, abortifacients that will be used for such
purpose and their other forms or equivalent. (Emphasis supplied)
Petitioners argue that the law violates the right to health because allowing general access to contraceptives
by including them in the national drug formulary and in the supplies of national hospitals means that the
citizens are being exposed to several health risks such as different types of cancer, thromboembolytic
events, myocardial infarction, and stroke, among others.
Petitioners point to no specific drug or contraceptive. They produce medical journals which tend to support
their justification and ask this court to accept them as gospel truth. On the other hand, respondents also
show journals that support their claims.
The petitioners misread this provision.
The law specifically grants the Food and Drug Administration (FDA) with the competence to determine the
scientific validity of the allegations of the petitioners. The FDA is mandated to examine each and every drug,
contraceptive or technology vis–a–vis the claims made for or against their inclusion.
I agree with the ponencia in withholding any blanket pronouncement of any contraceptive absent the
exercise of the FDA of its functions under this provision. The FDA is mandated to ensure the safety and
quality of drugs released to the public.256
Generalizations and exaggerated claims are symptomatic of anguished advocacies. The angst that
accompany desperate attempts to convince often push well–meaning advocates to magnify fears that go
beyond the reasonable.
The argument that drugs that may be abused should not be made available to the public is perhaps more
dangerous to public health than a total ban on contraceptives. It is a proposed policy that misunderstands
the effect of any kind of drug on the human body. It is, thus, arbitrary and without reason.
Drugs aim to affect our bodily processes to achieve a desired outcome.257 They work by targeting and
interacting with cell receptors, enzymes and/or other substances in our body so that the desired change in
our chemical processes and/or physiological functions can be effected.258
However, our bodies are complex systems. Targeted receptors and/or enzymes may exist in non–target
areas.259 They may have structural similarities with non–target receptors and/or enzymes. Thus, while drugs
in general are designed for a specific purpose, the complexities of our systems allow for a relatively
generalized effect. There are unintended effects that are often called the “side effects.”260 This is a property
that is not exclusive to contraceptive drugs. It is a property of drugs in general.
Aspirin, for example, is advisable for thromboembolic disorders, stroke or for the prevention of
cerebrovascular events.261 Abusing the use of aspirin, however, may cause gastrointestinal bleeding.
262
Aldomet is a drug usually taken to relieve hypertension.263 When abused, its reported side effects include
maladjustments affecting the nervous system, blood, and the liver. Among the reported reactions are
sedation, headache, psychic disturbances, hepatitis, and hemolytic anemia.264
Even drinking too much water may cause hyponatremia, which is the low sodium concentration in the
plasma.265
Side effects are expected with every drug from the weakest to the most potent. Their prescriptions are
trade–offs between all the benefits and risks associated with it. Every drug should be taken to address the
ailment but in a way that minimizes the risk. This is usually why there are proper dosages and time periods
to take medicines. This is also why some medicines are not dispensed without the proper prescription.
Several drugs are not prescribed when there is pregnancy because of the fetal risks associated with them.
Among these are Xenical (orlistat) used as a nutrition pill, Advil and any kind of Ibuprofen (during the third
trimester) used to manage pain, Testim (testosteron) given for endocrine disorders, Flagyl (metronidazole)
to manage infection, Crestor (rosuvastatin) to manage cholesterol, Vistaril (hydroxyzine) usually given for
allergic reactions, and many more.266
The use of these drugs is appropriately limited so that they cannot have the effect or be used as
abortifacients. This does not mean, however, that they are, per se, abortifacients.
The policy embedded in the law is that the proper use of contraceptives will prevent unwanted pregnancy
and, therefore, also prevent complications related to pregnancy and delivery.267 The risks of its usage, when
proper and guided, can be relatively low compared to its benefits.268 More specifically, the FDA is most
competent in examining the scientific and medical basis of the beneficial claims and risks of each and every
contraceptive. Drugs may or may not be included in the Essential Drugs List, based on the FDA’s findings. It
is not for this court to jump to conclusions on the basis of the ad hoc presentations of medical journals from
the parties. This finding of fact should be left to the proper agency. There is an indefinite scope of possible
scenarios precisely because there was no actual case or controversy brought before this court. If applying
the law to even one of these possibilities may render it constitutional, then we should not declare it as
unconstitutional. The doctrine on the presumption of constitutionality must prevail when there is no factual
basis to invalidate the law.269
Only safe and effective medicines are included in the drug formulary.
The inclusion of contraceptives in the national drug formulary is not new. The Philippine Drug Formulary:
Essential Medicines List, Volume 7, of 2008 already listed it under “Hormones and Hormone Antagonists.”270
Contraceptives are included, following five pillars designed to make available affordable, safe, and effective
drugs to the public. These pillars are: (1) “the assurance of the safety, efficacy and usefulness of
pharmaceutical products through quality control;” (2) “the promotion of the rational use of drugs by both
the health professionals and the general public;” (3) “the development of self–reliance in the local
pharmaceutical industry;” (4) “[t]he tailored or targeted procurement of drugs by government with the
objective of making available to its own clientele, particularly the lower–income sectors of the society, the
best drugs at the lowest possible cost;” and (5) “people empowerment.”271
One of the steps for inclusion in the drug formulary is to ensure that the drug is of “acceptable safety,
proven efficacy, quality, and purity”.272 Ensuring that health products are safe, efficient, pure, and of quality
is a function of the Food and Drug Administration.273 Moreover, Republic Act No. 4729 requires that
contraceptive drugs and devices cannot be lawfully dispensed without proper medical prescription.
V
Conscientious Objector
The ponencia proposes to declare the provision relating to the mandatory referral of a conscientious objector
as unconstitutional because it violates the right to religion. I also disagree.
The sections involved provides:
SEC. 7. Access to Family Planning – All accredited public health facilities shall provide a full range of
modern family planning methods, which shall also include medical consultations, supplies and necessary and
reasonable procedures for poor and marginalized couples having infertility issues who desire to have
children: Provided, That family planning services shall likewise be extended by private health facilities to
paying patients with the option to grant free care and services to indigents, except in the case of non–
maternity specialty hospitals and hospitals owned and operated by a religious group but they have the
option to provide such full range of modern family planning methods: Provided further, That these
hospitals shall immediately refer the person seeking such care and services to another health
facility which is conveniently accessible: Provided finally, That the person is not in an emergency
condition or serious case as defined in Republic Act No. 8344.
SEC. 23. Prohibited Acts. – The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall:
xxxx
(3) Refuse to extend quality health care services and information on account of the person’s marital status,
gender, age, religious convictions, personal circumstances, or nature of work: Provided, That the
conscientious objection of a health care service provider based on his/her ethical or religious
beliefs shall be respected; however, the conscientious objector shall immediately refer the
person seeking such care and services to another health care service provider within the same
facility or one which is conveniently accessible: Provided, further, That the person is not in an
emergency condition or serious case as defined in Republic Act No. 8344, which penalizes the refusal of
hospitals and medical clinics to administer appropriate initial medical treatment and support in emergency
and serious cases[.] (Emphasis supplied)
The patient’s rights
Doctors routinely take an oath implying that the primordial consideration in their services is the welfare of
their patients. The form of the Physician’s Oath adopted by the World Medical Association is what is now
known as the Declaration of Geneva, to wit:
At the time of being admitted as a member of the medical profession:
I solemnly pledge to consecrate my life to the service of humanity;
I will give to my teachers the respect and gratitude that is their due;
I will practice my profession with conscience and dignity;
The health of my patient will be my first consideration;
I will respect the secrets that are confided in me, even after the patient has died;
I will maintain by all means in my power, the honor and the noble traditions of the medical profession;
My colleagues will be my sisters and brothers;
I will not permit considerations of age, disease or disability, creed, ethnic origin, gender,
nationality, political affiliation, race, sexual orientation, social standing or any other factor to
intervene between my duty and my patient;
I will maintain the utmost respect for human life;
I will not use my medical knowledge to violate human rights and civil liberties, even under threat;
I make these promises solemnly, freely and upon my honor.274 (Emphasis supplied)
Many of those who specialize in the ethics of the health profession emphasize the possibility of a health
service provider inordinately abusing conscientious objection over the welfare of the patient. Thus,
Physicians’ rights to refuse to participate in medical procedures that offend their conscience may be
incompatible with patients’ rights to receive lawful, medically indicated treatment. Historically, the goal of
medicine has been to provide care to the sick. The World Medical Association’s modern variant of the
Hippocratic Oath, the Declaration of Geneva, inspires the graduating physician to pledge that, “The health of
my patient will be my first consideration”. For many who enter medicine, the commitment to assist their
fellow human beings and pursue a path of personal salvation through this professional calling is religiously
inspired. A conflict of interest can arise if the physician’s religious or other conscientious convictions are in
tension with medically indicated procedures. The obvious case is therapeutic abortion, but analogous cases
include contraceptive sterilization and withdrawal of life support from otherwise viable patients. Physicians
who give priority to their own moral and spiritual convictions over their patients’ need and desire for
medically indicated care face a conflict that needs resolution.
The ethical conflict can be avoided through mutual accommodation; physicians have the right to decide
whom to treat, and patients have the right to decide from whom they will receive care. Physicians do not
have the same ethical duties to nonpatients as to patients except in emergency circumstances. In all other
circumstances, physicians are at liberty to choose those for whom they will accept the responsibility of
care. If there are services they will not perform, physicians should make the fact known to patients for
whom they have accepted responsibility. Doing so not only saves patients the distress of seeking those
services and being turned down, it also saves physicians from the dilemma of unfulfilled responsibilities to
those whose care they have agreed to undertake. This arrangement is well understood in medicine;
physicians who notify prospective patients that they are, for instance, pediatricians, will not be asked to
treat those requiring geriatric care, and geriatricians who do not have to accept patients seeking pediatric
services. More explicit disclosure is required, of course, when prospective patients may reasonably expect
that care will be available from the specialists they approach. Obstetrician–gynecologies who will not
participate in abortion procedures must make that fact clear before forming patient–physician
relationships.”275
If the first and primordial consideration is the health of her or his patient, then the beliefs of the service
provider even though founded on faith must accommodate the patient’s right to information. As stated in
the Code of Ethics of the Philippine Medical Association:
ARTICLE II
DUTIES OF PHYSICIANS TO THEIR PATIENTS
Section 5. A physician should exercise good faith and honesty in expressing opinion/s as to the
diagnosis, prognosis, and treatment of a case under his/her care. A physician shall respect the right
of the patient to refuse medical treatment. Timely notice of the worsening of the disease should be given to
the patient and/or family. A physician shall not conceal nor exaggerate the patient’s conditions except when
it is to the latter’s best interest. A physician shall obtain from the patient a voluntary informed
consent. In case of unconsciousness or in a state of mental deficiency the informed consent may be given
by a spouse or immediate relatives and in the absence of both, by the party authorized by an advanced
directive of the patient. Informed consent in the case of minor should be given by the parents or guardian,
members of the immediate family that are of legal age. (Emphasis supplied)
If a health care service provider’s religious belief does not allow a certain method of family planning, then
that provider may possibly withhold such information from the patient. In doing so, the patient is unable to
give voluntary informed consent to all possible procedures that are necessary for her or his care.
The law, in sections 17 and 23 allow accommodation for full care of the patient by requiring referral. The
patient that seeks health care service from a provider should be able to put his or her trust on the provider
that he or she would be referred to the best possible option. There is nothing in the law which prevents the
referring health care provider from making known the basis of his or her conscientious objection to an
available procedure which is otherwise scientifically and medically safe and effective.
Between the doctor or health care provider on the one hand and the patient on the other, it is the patient’s
welfare and beliefs which should be primordial. It is the patient that needs the care, and the doctor or
health care provider should provide that care in a professional manner.
While providers have a right to their moral beliefs, the right does not allow health–care providers to violate
their professional and legal obligations to the patient. Policies on health–care provider refusals should be
carefully crafted to maximize the rights of individuals to their beliefs without extending this “protection” so
far that it prevents patients from getting the medical care or information they need.276
The holding of the majority which declares the mandatory referral systems in Section 17 and
Section 23, paragraph (a) (3) as unconstitutional on the basis of the right of religion of the
doctor or health care provider implicitly imposes a religious belief on the patient.
It is in this context that many experts say that:
Religious initiatives to propose, legislate, and enforce laws that protect denial of care or assistance to
patients, (almost invariably women in need), and bar their right of access to lawful health services, are
abuses of conscientious objection clauses that aggravate public divisiveness and bring unjustified criticism
toward more mainstream religious beliefs. Physicians who abuse the right to conscientious objection
and fail to refer patients to non–objecting colleagues are not fulfilling their profession’s covenant
with society.277
We must not assume that situations involving the duty to refer cover information or services that may be
objectionable only to a specific religious group. Neither can we assume, for example, that the situation
would always involve an extreme case such that a patient would seek an abortion.
There are, in fact, many reasons why a patient would seek information or services from a health
professional. To be sure, when we speak of health care services and information under Section 23(3) of the
law, we refer to a “full range of methods, facilities, services and supplies that contribute to reproductive
health and well–being.”278
Considering that the law is yet to be implemented, there are no facts from which this court can base its
ruling on the provision. We cannot and must not speculate.
Conscientious objection and religious objection
There is a difference between objections based on one’s conscience and those based on one’s religion.
Conscience appears to be the broader category. Objections based on conscience can be unique to the
individual’s determination of what is right or wrong based on ethics or religion. Objections based on religion,
on the other hand, imply a set of beliefs that are canonical to an institution or a movement considered as a
religion. Others share religious belief. Conscientious objection may also include those whose bases are
unique only to the person claiming the exception. One’s conscience may be shaped by cultural factors other
than religion. It is clear that a conscientious objector provision whose coverage is too broad will allow too
many to raise exception and effectively undermine the purpose sought by the law.279
The duty to refer is also found in Section 7 of the law:
SEC. 7. Access to Family Planning. – All accredited public health facilities shall provide a full range of
modern family planning methods, which shall also include medical consultations, supplies and necessary and
reasonable procedures for poor and marginal couples having infertility issues who desire to have children:
Provided, That family planning services shall likewise be extended by private health facilities to paying
patients with the option to grant free care and services to indigents, except in the case of non–maternity
specialty hospitals and hospitals owned and operated by a religious group, but they have the option to
provide such full range of modern family planning methods: Provided, further, That these hospitals
shall immediately refer the person seeking such care and services to another health facility
which is conveniently accessible: Provided, finally, That the person is not in an emergency condition or
serious case as defined in Republic Act No. 8344.
x x x x (Emphasis supplied)
The same considerations for individual health practitioners should apply to private health institutions. Private
health institutions are duty–bound to prioritize the patient’s welfare and health needs.
Requirements of a challenge based on religion
The constitutional provision invoked by petitioners provides:
Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political
rights.280
The provision contains two parts. The first part is the non–establishment clause.281 This contains a
proscription against the direct or indirect state sponsorship of a religion and is closely related to another
fundamental tenet in the Constitution, which provides:
Section 6. The separation of Church and State shall be inviolable.282
The second part is the free exercise of religion clause.283 The protection to “religious profession and worship”
is absolute when it comes to one’s belief or opinion. The balance between compelling state interests and the
religious interest must, however, be struck when the “profession and worship” are expressed in conduct
which affect other individuals, the community or the state. Religious conduct or omissions on the basis of
religious faiths are not absolutely protected.
In Iglesia Ni Cristo v. Court of Appeals,284 this court reiterated the rule that:
x x x the exercise of religious freedom can be regulated by the State when it will bring about the clear and
present danger of some substantive evil which the State is duty–bound to prevent, i.e., serious detriment to
the more overriding interest of public health, public morals, or public welfare. A laissez faire policy on the
exercise of religion can be seductive to the liberal mind but history counsels the Court against its blind
adoption as religion is and continues to be a volatile area of concern in our country today. Across the sea
and in our shore, the bloodiest and bitterest wars fought by men were caused by irreconcilable religious
differences.285
Then in Estrada v. Escritor,286 this court clarified:
Although our constitutional history and interpretation mandate benevolent neutrality, benevolent neutrality
does not mean that the Court ought to grant exemptions every time a free exercise claim comes before it.
But it does mean that the Court will not look with hostility or act indifferently towards religious beliefs and
practices and that it will strive to accommodate them when it can within flexible constitutional limits; it does
mean that the Court will not simply dismiss a claim under the Free Exercise Clause because the conduct in
question offends a law or the orthodox view for this precisely is the protection afforded by the religion
clauses of the Constitution, i.e., that in the absence of legislation granting exemption from a law of general
applicability, the Court can carve out an exception when the religion clauses justify it. While the Court
cannot adopt a doctrinal formulation that can eliminate the difficult questions of judgment in determining
the degree of burden on religious practice or importance of the state interest or the sufficiency of the means
adopted by the state to pursue its interest, the Court can set a doctrine on the ideal towards which religious
clause jurisprudence should be directed. We here lay down that doctrine that in Philippine jurisdiction, we
adopt that benevolent neutrality approach not only because our constitutional history and interpretation
indubitably show that benevolent neutrality is the launching pad from which the Court should take off in
interpreting religion clause cases. The ideal towards which this approach is directed is the protection of
religious liberty ‘not only for a minority, however small – not only for a majority, however large – but for
each of us’ to the greatest extent possible within flexible constitutional limits.287
The same case also cited the “Lemon test” which states the rules in determining the constitutionality of laws
challenged for violating the non–establishment of religion clause:
First, the statute must have a secular legislative purpose; second, its primary or principal effect must be one
that neither advances nor inhibits religion; x x x finally, the statute must not foster ‘an excessive
entanglement with religion.288
However, the application of these standards first requires the existence of an actual case
involving (1) a specific conduct (2) believed to be related to profession or worship (3) in a
specific religion.
The basis for invoking the right to religion is not always clear. For instance, there is no single definition of
religion.
The common dictionary meaning is that it is “an organized system of beliefs, ceremonies, and rules used to
worship a god or a group of gods.”289 Another dictionary meaning is that “religion may be defined broadly as
the human quest for, experience of, and response to the holy and sacred.”290 An author in a journal on
ethics asserts that “religion is the effective desire to be in right relations to the power manifesting itself in
the universe.”291
In Aglipay v. Ruiz,292 this court adopted a bias toward theistic beliefs when it defined religion “as a
profession of faith to an active power that binds and elevates man to his Creator x x x.”293 But there are
beliefs commonly understood to be religious which are non–theistic. Courts have grappled with the definition
of a religion.294
But these could not be issues in this case because there are no actual facts upon which we could base our
adjudication.
None of the petitions allege the conduct claimed to be part of “profession or worship”. None of the petitions
point to how this specific conduct relates to a belief or teaching of a religion. None of the petitions show how
fundamental to the specific religious faith such conduct is.
In other words, the petitions do not show a specific instance when conscientious objection was availed of as
a result of the exercise of a religion. In this case, we are asked to evaluate whether the provision that
accommodates conscientious objectors would, in the future, with unspecified facts, violate the constitutional
provision on religious exercise.
Thus, it is also not clear in the ponencia whether the provisions on referral by conscientious objectors are
declared unconstitutional for all religions or only for specific ones. This is the natural result for speculative
cases. This is dangerous constitutional precedent. If the declaration is for all religions, then this might just
result in a violation of the non–establishment clause. A dominant majoritarian religion is now aided in
imposing its beliefs not only on patients but also on all those who have different faiths.
Conduct which purport to be religious practice and its relationship to the fundamental tenets of that religion
is a question of fact which cannot be part of our judicial notice. Otherwise, we implicitly establish a religion
or manifest a bias towards one in violation of the clear and absolute separation between church and state.
Contraceptives and Religion
Even the proscription on the use of contraceptives may not clearly be a religious tenet. We do not have the
competence to assume that it is so.
With respect to the Catholic faith, the comment–in–intervention of De Venecia, et al. included a history on
the Catholic Church’s changing and inconsistent position regarding contraceptives, and the notion that every
conjugal act must be for a procreative purpose.
The intervenors asserted that the notion denouncing sex without procreative intent cannot be
found in the old or new testament. During the church’s existence in the first few hundred years, the
issue of the church was not on the purpose of the conjugal act but on the specific methods for contraception
as some were associated with witchcraft.295 The idea that requires the procreative purpose for the sexual act
was not originally Christian but borrowed from pagan Greek Stoics during the early second century:
As James Brundage has pointed out, the immediate source of influence on Christian writers was the pagan
Stoics, whose high ideals for morality challenged the Christians to copy them or even do better. Natural law
or the law of nature was the basis for these ideals. The famous Stoic jurist Ulpian supplied to Christian
writers their understanding of natural law. For Ulpian, natural law consisted in the laws of nature that
animals and humans had in common. Among the domestic animals with which Ulpian was familiar, the
female accepted the male only when she was in heat. So it was the law of nature for humans and
animals alike that sexual intercourse should only take place for breeding.296 (Emphasis supplied)
The Catholic Church through Pope Paul VI later secretly created a Pontifical Commission for the Study of
Population, Family and Births to recommend whether modern contraceptive methods could be
permitted.297 The commission’s final report concluded, by two–third votes, that “no natural law proscribed
non–reproductive sex and no doctrinal, scientific, medical, social or other reason existed for the church to
continue prohibiting the use of modern birth control.”298
Despite these findings, two ultraconservative members issued a minority report arguing that “the Vatican’s
authority would be irreparably undermined if it abandoned a position it had adopted hundreds of years
earlier.”299
Consequently, Pope Paul VI issued Humanae Vitae reiterating Pope Pius XI’s 1930 encyclical Casti
Connubii on natural law’s proscription against sex without procreative intent.300The commission’s creation
and its reports were leaked to the public, resulting in mass protests and defiance within the church.301
Intervenors quoted at length a detailed account of these events surrounding the Casti Connubii and
Humanae Vitae, thus:
Nervous prelates in Rome felt that the pill was just an excuse to jettison the Vatican’s position on birth
control, which was resented and under siege. The euphoria over new freedoms was part of the social
giddiness that characterized the 1960s, in the church as in the secular world. It was a time of the sexual
revolution, feminism, and new attitudes toward authority. In this atmosphere, the papal pronouncements
about natural law were brought under closer scrutiny by natural reason, and they grew flimsier with every
look. There was great fear in the Curia of the Vatican that this mood would invade the Council Pope John
was assembling (as, in fact, it did). The whole matter of birth control was considered especially
endangered, and it would be fought over strenuously in two Roman arenas, one open and one
Secret. The former battle, carried on in the sessions of the Vatican Council, reached a kind of
stalemate in the conciliar decree on the church in the modern world, Gaudiumet et Spes. The
other battle, waged in secret by the Pope’s own special commission, led to that commission’s
stunning defeat by the Pope’s own encyclical Humanae Vitae.302 (Emphasis supplied)
Humanae Vitae
That Pontifical Commission met five times, at first in the fall of 1963 – six men convening at Louvain. The
second meeting (like all subsequent ones) was in Rome, in the spring of 1964, attended by the thirteen
men. The number was increased to fifteen for a meeting that summer. Up to this point, no one had
presumed to recommend altering the church’s teaching on contraception. Things changed at the fourth
session, held in the spring of 1965, when the size of the commission jumped up to fifty– eight, with five
women among the thirty–four lay members. An expert called in for consultation was John T. Noonan, from
Notre Dame in Indiana, whose study of the church’s changing positions on usury had won scholarly acclaim.
He was working on a similar study of changes in the prohibition of contraception – a book that would appear
just as the commission was disbanded. Noonan opened the members' eyes to the way that noninfallible
papal teaching can develop.
Another eye opener was the result of a questionnaire brought to Rome by the lay couple Pat and Patty
Crowley. They had long been active in the international Christian Family Movement, and they had surveyed
their members – devout Catholics all – on their experience of the rhythm method of contraception. They
found it far from natural– Since a woman’s period fluctuates with her health, anxieties, age, and other
influences, establishing the actual infertile period in any cycle required daily charting of her temperature and
close comparative reading of calendars – and even then the results were not Sure. The most conscientious
catholics, who followed this nervous procedure with precision, found that it was not certain – which left them
in great fear until the next menstruation (which might not occur). And in this concentration on the wife’s
physical conditions, her psychological patterns – of fondness, need, crises, travel – had to be ignored or
repressed. The comments of the couples surveyed made riveting reading in the commission. A husband, a
scholar, wrote:
Rhythm destroys the meaning of sex act; it turns it from a spontaneous expression of spiritual and physical
love into a mere bodily sexual relief; it makes me obsessed with sex throughout the month; it seriously
endangers my chastity; it has a noticeable effect upon my disposition toward my wife and children; it makes
necessary my complete avoidance toward my wife for three weeks at a time. I have watched a magnificent
spiritual and physical union dissipate and, due to rhythm, turn into a tense and mutually damaging
relationship. Rhythm seems to be immoral and deeply unnatural. It seems to be diabolical.
His wife gave her side of the story:
I find myself sullen and resentful of my husband when the time of sexual relations finally arrives. I resent
his necessarily guarded affection during the month and I find I cannot respond suddenly. I find, also, that
my subconscious and unguarded thoughts are inevitably sexual and time consuming. All this in spite of a
great intellectual and emotional companionship and a generally beautiful marriage and home life.
The commission was hearing that rhythm made people obsessed with sex and its mechanics while minority
members at the Council were arguing that rhythm allows people to escape the merely animal urges and
enjoy the serenity of sexuality transcended. The commission was also hearing from doctors that nature, of
course, provides women with their greatest sexual desire at just the fertile time that rhythm marked off
bounds.
The combined impact of Noonan’s history and the Crowley’s empirical findings made the
commission members – good Catholics all, chosen for their loyalty to the church – look honestly
at the “natural law” arguments against contraception and see, with a shock, what flimsy
reasoning they had accepted. Sex is for procreation, yes – but all the time, at each and every
act? Eating is for subsistence. But any food or drink beyond that necessary for sheer subsistence is not
considered mortally sinful. In fact, to reduce to that animal compulsion would deny symbolic and spiritual
meanings in shared meals – the birthday party, the champagne victory dinner, the wine at Cana, the
Eucharist itself. Integrity of the act? Is it sinful to be nourished intravenously when that is called for? Does
that violate the integrity of the eating act? The more assembled members looked at the inherited “wisdom”
of the church, the more they saw the questionable roots from which it grew – the fear and hatred of sex, the
feeling that pleasure in it is a biological bribe to guarantee the race’s perpetuation, that any use of pleasure
beyond that purpose is shameful. This was not a view derived from scripture or from Christ, but from
Seneca and Augustine.
The commission members, even trained theologians and spiritual counselors who had spent years
expounding the church teachings, felt they were looking at reality for the first time. A cultivated submission
to the papacy had been, for them, a structure of deceit, keeping them from honesty with themselves, letting
them live within a lie. To their shared surprise they found they were not only willing to entertain
the idea of the church’s changing, but felt that it had to change on this matter, that the truth,
once seen, could no longer be denied. When the nineteen theologians on the commission,
convened for a separate vote, were asked whether church teaching could change on
contraception, twelve said yes, seven no (including John Ford, who had joined the commission at
this meeting).
This set off alarm bells in the Vatican. For the next meeting, the last and the longest, from April to June of
1965, the members of the commission were demoted to “advisers” (periti) and the commission itself was
constituted of sixteen bishops brought in to issue the final report. They would listen to those who had done
the actual conferring, and theirs would be the final verdict. Debate before them would be presided over by
Cardinal Ottaviani of the Holy Office. This bringing in the big guns would have cowed the members in their
first sessions. But things had gone too far for such intimidation now. The Crowleys brought another survey
with them to the showdown, this one of 3,000 Catholics – including 290 devout subscribers to the magazine
St. Anthony’s Messenger – of whom 63 percent said that rhythm had harmed their marriage and 65 percent
said that it did not actually prevent conception, even when the right procedures were followed exactly (even
neurotically). Dr. Albert Gorres spoke of the self– censorship Catholics had exercised over themselves –
something the members recognized in their lives when it was pointed out. The Jesuit priest Josef Fuchs, who
had taught Casti Connubii standards for twenty years, said he was withdrawing his moral textbook and
resigning his teaching post at the Gregorian University in Rome now that he could no longer uphold what he
was asked to profess. The vote of the theologians who were presenting their findings to the
bishops was now fifteen to four against the claim that conception is intrinsically evil. The vote of
the larger group was thirty to five.
Here was a perfect laboratory test of the idea that contraception is against nature, as that can be perceived
by natural reason alone. These people were all educated, even expert. They were Catholics in good standing
(they had been chosen on those grounds). They had been conditioned all their lives to accept the church’s
teaching – in fact they had accepted it in the past. They of all people would entertain the official case with
open minds. They had no malice against church authorities – most of them had devoted much (if not all) of
their lives to working with them. Most had entered the project either agreeing with the papal position or
thinking that it was unlikely to change. Now they found themselves agreeing that change was not only
necessary but inevitable. They had trouble imagining how they had ever thought otherwise. Cardinal
Suenens explained how they had been conditioned to have a double consciousness, to live a lie:
For years theologians have had to come up with arguments on behalf of a doctrine they were not allowed to
contradict. They had an obligation to defend the received doctrine, but my guess is they already had many
hesitations about it inside. As soon as the question was opened up a little, a whole group of moralists
arrived at the position defended by the majority here. . . The bishops defended the classical position, but it
was imposed on them by authority. The bishops didn't study the pros and cons. The received directives,
they bowed to them, and they tried to explain them to their congregations.
As soon as people began to think independently about the matter, the whole structure of deceit
crumbled at the touch. The past position could not be sustained, even among these people picked
by the Vatican itself, much less among Catholics not as committed as these were. And it was
absurd to speak of the non–Catholic world as ever recognizing this “natural law of natural
reason.”
The need to face the prospect of change was impressed on the people in the commission by the arguments
of the five theologians defending Casti Connubii. They reduced their own case to absurdities. John Ford said
that intercourse is not necessary for marital love: “Conjugal love is above all spiritual (if the love is genuine)
and it requires no specific carnal gesture, much less its repetition in some determined frequency.” Ford also
liked to say that, if the teaching on sexual activity only for procreation were changed, people could
rnasturbate with impunity. Dr. Gorres quoted the Melchite Patriarch, Maximos IV, who said in the Council
deliberations that priests display a “celibate psychosis” in the area of sex. ***
The climactic vote of the commission – the one of the sixteen bishops – was nine to three for
changing the church’s position on contraception, with three abstentions. An agreement had been
reached before the vote was taken to submit only one report for the commission, but Cardinal
Ottaviani and Father Ford, seeing how things were going, had prepared a document of their own,
which would later be misrepresented as an official minority document. There was only one official
document, the sole one voted on by the bishops who had authority to report the body’s findings. (Ottaviani
was the one who had brought in these officials, hoping to get the result he wanted. When he failed to, he
ignored his own device.)
The Ford “report”, drawn up with Germain Grisez, said that any change was inconceivable. This was not
because there were rational arguments against change: “If we could bring forward arguments which are
clear and cogent based on reason alone, it would not be necessary for our Commission to exist, nor would
the present state of affairs exist in the church.” No, the real reason to keep the teaching was that it was the
teaching: “The Church could not have erred though so many centuries, even through one century, by
imposing under serious obligations very grave burdens the name of Jesus Christ, if Jesus Christ did not
actually impose these burdens.” As a priest had put it in earlier debate, if the church sent all those
souls to hell, it must keep maintaining that that is where they are.
This was not an argument that made sense, at this point, to the commission – to bishops any
more than to the theologians or lay experts. But it was the one argument that, in the end,
mattered to Paul VI. He took advantage of the so–called “minority report” to say that he could
not accept the commission’s findings since there had been disagreement with it. Nine of the twelve
bishops, fifteen of the nineteen theologians, and thirty of the thirty–five nonepiscopal members of the
commission were not enough for him. Votes on the decrees in the Council had not been unanimous either,
but he did not call them invalid for that reason. Paul’s real concern was with the arguments that Ottaviani
brought to him after the report was submitted. He knew what was worrying the Pope, and could play on
that. F.X. Murphy had observed one thing about Paul’s behavior throughout the meetings of the Council:
The Pope was a man obviously torn by doubts, tormented by scruples, haunted by thoughts of perfection,
and above all dominated by an exaggerated concern – some called it an obsession – about the prestige of
his office as Pope. His remarks on this score at times displayed an almost messianic fervor, a note missing in
the more sedate utterances of his predecessors. His innumerable statements on the subject were made on
almost every occasion, from casual week–day audiences of Sunday sermons from the window of his
apartment to the most solemn gatherings in season and out of season. Since it was part of the strategy of
the [conciliar] minority to accuse the majority of disloyalty toward the Holy Father' Paul’s constant harping–
in inevitably caused the majority to think that he perhaps did share these misgivings, at least to a certain
extent. It was noticed by students of Paul’s remarks that while he showed an open– mindedness about
almost any other subject, on the single theme of the papacy his mind remained strangely closed to analysis.
Those words were written before Humanae Vitae was issued, but they explain the letter entirely.
The commission members left their work convinced that the pope could no longer uphold a
discredited teaching. When the report was leaked to the press, Catholics around the world took
heart at the signs of change. So far from upsetting their faith, as the Pope feared, it heartened
them. What would unsettle their faith was what Paul did next – issue Humanae Vitae, with its
reiteration of Casti Connubii’s ban: ('The church, calling men back to the observance of the natural law,
as interpreted by its constant doctrine, teaches that each and every marriage act must remain open to the
transmission of life.” Catholics responded with an unparalleled refusal to submit. Polls registered an instant
noncompliance with the encyclical. At a previously scheduled Catholic festival of devout young Germans at
Essen, a resolution that those attending could not obey the encyclical passed through a crowd of four
thousand with only ninety opposing votes. A simultaneous poll among German Catholics at large found that
68 percent of them thought the Pope was wrong on contraception. Similar findings rolled in from around the
world.
What were bishops to do? The encyclical itself had ordered them to explain and enforce the Pope’s decision,
along with all priests:
Be the first to give, in the exercise of your ministry, the example of loyal internal and external obedience to
the teaching authority of the Church. . . it is of the utmost importance, for peace, of consciences and for the
unity of the Christian People, that in the field of morals as well as in that of dogma, all should attend to the
magisterium of the Church, and all should speak the same language.
But for the first time in memory, bishop’s statements, while showing respect for the encyclical,
told believers they could act apart from it if they felt bound by conscience to do so. The assembly
of bishops in the Netherlands put it most bluntly: “The assembly considers that the encyclical’s
total rejection of contraceptive methods is not convincing on the basis of the arguments put
forward.” other Episcopal panels were more circumspect, but signaled that they would not consider those
disobedient to the encyclical to be separating themselves from the sacraments. The Belgian bishops put it
this way: “Someone, however, who is competent in the matter under consideration and capable of forming a
personal and well–founded judgment – which necessarily presupposes a sufficient amount of knowledge –
may, after serious examination before God, come to other conclusions on certain points.” In other words:
do not treat the Pope’s words lightly, but follow your conscience after taking a serious look at
them. That was the position taken by bishops in the United States ("the norms of licit dissent
come into play” ), Austria, Brazil, Czechoslovakia, Mexico, [] West Germany, Japan, France,
Scandinavia, and Switzerland. The Scandinavian statement was typical:
Should someone, however, for grave and carefully considered reasons, not feel able to subscribe
to the arguments of the encyclical, he is entitled, as has been constantly acknowledged, to
entertain other views than those put forward in a non–infallible declaration of the Church. No
one should, therefore, on account of such diverging opinions along, be regarded as an inferior
Catholic.
The Pope was stunned. He would spend the remaining ten years of his pontificate as if sleepwalking, unable
to understand what had happened to him, why such open dissent was entertained at the very top of the
episcopate. Four years after the publication of Humanae Vitae, when the Pope looked “cautious, nervous,
anxious, alarmed,” he deplored the defiance of church teaching in a sermon at Saint Peter’s, and this was
the only explanation he could come up with for the defiance: “Through some crack in the temple of God, the
smoke of Satan has entered'” He was increasingly melancholy and prone to tears. Had he opened that crack
in the temple of God? Even as a nagging suspicion this was a terrible burden to bear. It explains the
atmosphere of darkening tragedy that hung about his final years. He would not issue another encyclical in all
those ten years. He was a prisoner of the Vatican in a way that went beyond his predecessors' confinement
there. He was imprisoned in its structures of deceit. Meanwhile, Father Ford, who had assisted his fellow
Jesuit Gustave Martelet in drawing up Humanae Vitae under Cardinal Ottaviani’s direction, went back to the
seminary where he had taught moral theology for years and found that the Jesuit seminarians their refused
to take his classes, since they knew from others in the Order what he had done in Rome. As a result of what
he considered his life’s great coup, his teaching career was over.303 (Emphasis supplied)
Intervenors even alleged that as early as 1999, “nearly 80% of Catholics believed that a person could be a
good Catholic without obeying the church hierarchy’s teaching on birth control.”304 They, therefore, put in
issue whether the views of petitioners who are Catholics represent only a very small minority within the
church.
We cannot make any judicial determination to declare the Catholic Church’s position on
contraceptives and sex. This is not the forum to do so and there is no present controversy—no
contraceptive and no individual that has come concretely affected by the law.
This court must avoid entering into unnecessary entanglements with religion. We are apt to do
this when, without proof, we assume the beliefs of one sect or group within a church as definitive
of their religion. We must not assume at the outset that there might be homogeneity of belief
and practice; otherwise, we contribute to the State’s endorsement of various forms of
fundamentalism.305
It is evident from the account quoted above giving the historical context of the contraceptives controversy
that the Catholic church may have several perspectives and positions on the matter. If this is so, then any
declaration of unconstitutionality on the basis of the perceived weaknesses in the way conscientious
objectors are accommodated is premature.
VI
Family
There being no actual case or controversy, the petitions also do not provide justification for this court to
declare as unconstitutional Section 23(2)(i) of the RH Law on spousal consent, and Section 7, paragraph 2
on parental consent. These provisions read:
SEC 23. Prohibited Acts. – The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall:
xxxx
(2) Refuse to perform legal and medically–safe reproductive health procedures on any person of legal age
on the ground of lack of consent or authorization of the following persons in the following instances:
(i) Spousal consent in case of married persons: Provided, That in case of disagreement, the decision of the
one undergoing the procedure shall prevail; and
SEC. 7. Access to Family Planning – x x x
No person shall be denied information and access to family planning services, whether natural or
artificial: Provided, That minors will not be allowed access to modern methods of family planning without
written consent from their parents or guardian/s except when the minor is already a parent or has had a
miscarriage.
Spousal Consent
According to petitioners Millennium Saint Foundation, Inc., et al., “while both play equal roles in procreation,
the man or the husband is violated of his right of conjugal decisions when it is the woman’s decision that will
be followed whether to avail of contraceptives or not.”306
Petitioners Couples for Christ Foundation, Inc., et al. argued that “the [reproductive health] procedure does
not involve only the body of the person undergoing the procedure [as] it affects the future of the family (in
terms of its size or even the presence of children) as well as the relationship between spouses.”307
The ponencia agreed and discussed how “giving absolute authority to the spouse who would undergo a
procedure, and barring the other spouse from participating in the decision would drive a wedge between the
husband and wife, possibly result in bitter animosity, and endanger the marriage and the family, all for the
sake of reducing the population.”308The ponencia cited the constitutional mandate of the state to defend the
“right of spouses to found a family x x x.”309
These provisions of Republic Act No. 10354 do not threaten nor violate any right, even the right to family.
Section 23(a)(2)(i) applies to a specific situation: when there is a disagreement between married persons
regarding the performance of a “legal and medically–safe reproductive health procedure.”
The general rule encourages married persons to discuss and make a conjugal decision on the matter. They
are caught in a problem when they disagree. This agreement may fester and cause problems within their
family. The disagreement will not be created by the RH Law. It will exist factually regardless of the
law. Section 23(a)(2)(i) of the law becomes available to break this deadlock and privilege the decision of
the spouse undergoing the procedure.
This is logical since the reproductive health procedures involve the body, health and well being of the one
undergoing the procedure.
The marriage may be a social contract but is certainly not a talisman that removes the possibility of power
relationships. Married persons, especially the woman/wife, can still suffer inequality. Married persons may
still experience spousal abuse.
Generally, it will be the woman who will ask to undergo reproductive health procedures. The interpretation
of the majority therefore affects her control over her body. Rather than enhance the zones of autonomy of a
person even in a married state, the interpretation of the majority creates the woman’s body as a zone of
contestation that gives the upper hand to the husband.
The majority derives the right to a family from Article XV and reads it in isolation from all the other
provisions of the Constitution. In my view, these rights should be read in relation to the other provisions.
Article XV reads:
The Family
Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall
strengthen its solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected
by the State.
Section 3. The State shall defend:
(1) The right of spouses to found a family in accordance with their religious convictions and the demands of
responsible parenthood;
(2) The right of children to assistance, including proper care and nutrition, and special protection from all
forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development;
(3) The right of the family to a family living wage and income; and
(4) The right of families or family associations to participate in the planning and implementation of policies
and programs that affect them.
The ponencia cites Morfe v. Mutuc310 on the protected zone of marital privacy. This case is not in point. It
does not apply to a conflict between the spouses. It applies in declaring a zone of privacy of spouses vis–à–
vis state action.
Citing Griswold v. Connecticut, the court said:
The Griswold case invalidated a Connecticut statute which made the use of contraceptives a
criminal offense on the ground of its amounting to an unconstitutional invasion of the right of
privacy of married persons; rightfully it stressed ‘a relationship lying within the zone of privacy created
by several fundamental constitutional guarantees’. So it is likewise in our jurisdiction. The right to privacy as
such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of
constitutional protection. The language of Prof. Emerson is particularly apt: ‘The concept of limited
government has always included the idea that governmental powers stop short of certain intrusions into the
personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited
government. Ultimate and pervasive control of the individual, in all aspects of his life, is the
hallmark of the absolute state. In contrast, a system of limited government safeguards a private sector,
which belongs to the individual, firmly distinguishing it from the public sector, which the state can control
Protection of this private sector – protection, in other words, of the dignity and integrity of the individual –
has become increasingly important as modern society has developed. All the forces of a technological age –
industrialization, urbanization, and organization – operate to narrow the area of privacy and facilitate
intrusions into it. In modern terms, the capacity to maintain and support this enclave of private life marks
the difference between a democratic and a totalitarian society.’311 (Emphasis supplied)
This is one view. It did not take into consideration the state’s interest in ensuring human rights and the
fundamental equality of women and men.
The right to a family should be read in relation to several provisions in the Constitution that guarantee the
individual’s control over her or his own person. Thus, Article III, Section 1 of the Constitution states:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any
person be denied the equal protection of the laws.
This due process clause implies and congeals a person’s right to life. This includes the individual’s right to
existence as well as her or his right to a quality of life of her or his choosing. The State is not to sanction a
program or an act that deprives the individual of her or his control over her or his life and body. The “equal
protection” clause in this provision ensures that individuals, even those that enter into a married state, do
not coexist and suffer under conditions of marital inequality.
Article II elaborates on the positive obligation of the State to the right to life as embodied in the due process
clause in two sections. Sections 9 and 11 provide:
Section 9. The State shall promote a just and dynamic social order that will ensure the prosperity and
independence of the nation and free the people from poverty through policies that provide adequate social
services, promote full employment, a rising standard of living, and an improved quality of life for all.
Section 11. The State values the dignity of every human person and guarantees full respect for human
rights. (Emphasis supplied)
Section 14 of the same article also improves on the goal of equality of men and women. While section 1
provides for equal protection of the laws, this section creates a positive duty on the State as follows:
Section 14. The State recognizes the role of women in nation–building, and shall ensure the
fundamental equality before the law of women and men.(Emphasis supplied)
The fundamental equality of women and men, the promotion of an improved quality of life, and the full
respect for human rights do not exist when a spouse is guaranteed control the other spouse’s decisions
respecting the latter’s body.
The autonomy and importance of family should not be privileged over the privacy and autonomy of a
person. Marriage is not bondage that subordinates the humanity of each spouse. No person should be
deemed to concede her or his privacy rights and autonomy upon getting married.312
By declaring Section 23(a)(2)(i) as unconstitutional, the majority interprets the privacy and
autonomy of the family as also providing insulation of patriarchal or sexist practices from state
scrutiny.313This is not what the Constitution intends.
Parental Consent
The ponencia and the majority declared Section 7 of Republic Act No. 10354 unconstitutional for violating
the right to privacy as the provision dispensed with the written parental consent for minors who are already
parents or those who have had a miscarriage to access modern methods of family planning. Justice Reyes in
his concurring and dissenting opinion is also of the view that Section 7 is violative of Article II, Section 12 of
the Constitution on the parents’ natural and primary right and duty to nurture their children.
I disagree with both the ponencia and Justice Reyes’ views.
In declaring its unconstitutionality, the ponencia stated:
Equally deplorable is the debarment of parental consent in cases where the minor, who would be undergoing
a procedure, is already a parent or has had a miscarriage. x x x
xxxx
There can be no other interpretation of this provision except that when a minor is already a parent or has
had a miscarriage, the parents are excluded from the decision making process of the minor with regard to
family planning. Even if she is not yet emancipated, the parental authority is already cut off just because
there is a need to tame population growth.
xxxx
To insist on a rule that interferes with the right of parents to exercise parental control over their minor–child
or the right of the spouses to mutually decide on matters which very well affect the very purpose of
marriage, that is, the establishment of conjugal and family life, would result in the violation of one’s privacy
with respect to his family. It would be dismissive of the unique and strongly–held Filipino tradition of
maintaining close family ties and violative of the recognition the State affords couples entering into the
special contract of marriage [that they act] as one unit in forming the foundation of the family and
society.314
Justice Reyes, in striking down the exception to the required written parental consent for minors under
Section 7, paragraph 2, also states:
[t]here exists no substantial distinction as between a minor who is already a parent or has had a
miscarriage. There is no cogent reason to require a written parental consent for a minor who seeks access to
modern family planning methods and dispense with such requirement if the minor is already a parent or has
had a miscarriage. Under the Family Code, all minors, generally, regardless of his/her circumstances, are
still covered by the parental authority exercised by their parents. That a minor who is already a parent or
has had a miscarriage does not operate to divest his/her parents of their parental authority; such
circumstances do not emancipate a minor.315
The ponencia, however, clarified that access to information about family planning must be differentiated
from access to reproductive health methods.316 Further, it said that there must be an exception with respect
to life–threatening cases. In which case, the minor’s life must be safeguarded regardless of whether there is
written parental consent. 317
This provision has an exceptional application – when minors are already parents or when the minor has
miscarried before. The proviso inserted by the legislature should be presumed to be based on a well–
founded policy consideration with regard to the peculiar situation of minors who are already parents or those
who have experienced miscarriages. As I have stressed earlier, it has been the policy of the courts in this
jurisdiction to:
x x x avoid ruling on constitutional questions and to presume that the acts of the political departments are
valid in the absence of a clear and unmistakable showing to the contrary. To doubt is to sustain. This
presumption is based on the doctrine of separation of powers which enjoins upon each department a
becoming respect for the acts of the other departments. The theory is that as the joint act of Congress and
the President of the Philippines, a law has been carefully studied and determined to be in accordance with
the fundamental law before it was finally enacted.318
Rather than assume homogenous choices of family relationships on the basis of a speculative belief relating
to “close family ties,” the better part of prudence and wisdom from this Court would be to consider a more
cosmopolitarian reality. There are traditional and non–traditional families. Many of these arrangements of
family are the result of free human choices that go through a gamut of emotional conflicts. Teenage
pregnancy, like many other life defining events, do take their toll on family. We cannot speculate—for
now—as to how families will deal with these stresses. We cannot speculate on why these pregnancies
happen.
Those of us who have not and can never go through the actual experience of miscarriage by a minor, those
of us who cannot even imagine the pain and stresses of teenage pregnancy, should not proceed to make
blanket rules on what minors could do in relation to their parents. None of us can say that in all cases, all
parents can be understanding and extend sympathy for the minors that are legally under their care. None of
us can say that there are instances when parents would think that the only way to prevent teenage
pregnancy is a tongue lashing or corporeal punishment. We cannot understand reality only from the eyes of
how we want it to be.
Only when we are faced with an actual controversy and when we see the complications of a real situation
will we be able to understand and shape a narrowly tailored exception to the current rule. In the meantime,
the wisdom of all the members of the House of Representative, the Senate, and the President have
determined that it would be best to give the minor who is already a parent or has undergone a miscarriage
all the leeway to be able to secure all the reproductive health technologies to prevent her difficulties from
happening again. We must stay our hand for now.
VII
Separation of Powers
Justice del Castillo is of the view that based on our power to “promulgate rules for the protection and
enforcement of constitutional rights” under Article VIII, Section 5(5) of the Constitution, we have the power
to issue directives to administrative bodies as to “the proper rules” that they should promulgate in the
exercise of the powers granted to them.319
He cites Echegaray v. Secretary of Justice,320 thus:
The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it enhanced
the rule making power of this Court. Its Section 5(5), Article VIII, provides:
xxx xxx xxx
“Section 5. The Supreme Court shall have the following powers:
xxx xxx xxx
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice
and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to
the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy
disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or
modify substantive rights. Rules of procedure of special courts and quasi–judicial bodies shall remain
effective unless disapproved by the Supreme Court.”
The rule making power of this Court was expanded. This Court for the first time was given the power
to promulgate rules concerning the protection and enforcement of constitutional rights. The Court was also
granted for the first time the power to disapprove rules of procedure of special courts and quasi–judicial
bodies. x x x321
He believes that we have the power to approve or modify such rules or require them to issue rules for the
protection of constitutional rights. He states:
Viewed in light of the broad power of the Court to issue rules for the protection and enforcement of
constitutional rights, the power to disapprove the rules of procedure of quasi–judicial bodies is significant in
that it implies the power of the Court to look into the sufficiency of such rules of procedure insofar as they
adequately protect and enforce constitutional right. Moreover, the power to disapprove the aforesaid
rules of procedure necessarily includes or implies the power to approve or modify such rules or,
on the one extreme, require that such rules of procedure be issued when necessary to protect
and enforce constitutional rights. In other words, within and between the broader power to issue
rules for the protection and enforcement of constitutional rights and the narrower power to
disapprove the rules of procedure of quasi–judicial bodies, there exists penumbras of the power
that the Court may exercise in order to protect and enforce constitutional rights.
xxxx
Taken together [with Article VIII, Section 1 of the Constitution], the expanded jurisdiction of the Court and
the power to issue rules for the protection and enforcement of constitutional rights provide the bases for the
Court (1) to look into the sufficiency of safeguards in the implementation of the RH Law insofar as it will
adversely affect the right to life of the unborn, and (2) to issue such orders as are necessary and essential in
order to protect and enforce the constitutional right to life of the unborn. x x x322 (Emphasis supplied)
For this reason, it is suggested that “x x x the Court x x x issue an order:
(1) directing the FDA to formulate the rules of procedure in the screening,
evaluation and approval of all contraceptives that will be used under the
RH Law;
(2) the rules of procedure shall contain the following minimum
requirements of due process:
(a) publication, notice and hearing,
(b) the Solicitor General shall be mandated to represent the unborn and
the State’s interest in the protection of the life of the unborn,
(c) interested parties shall be allowed to intervene,
(d) the standard laid down in the Constitution, as adopted under the RH
Law, as to what constitute allowable contraceptives shall be strictly
followed, i.e., those which do not harm or destroy the life of the
unborn from conception/fertilization,
(e) in weighing the evidence, all reasonable doubts shall be resolved in
favour of the right to life of the unborn from conception/fertilization,
and
(f) the other requirements of administrative due process, as
summarized in Ang Tibay, shall be complied with.
The FDA should be directed to submit these rules of procedure within 30 days from receipt of the Court’s
decision, for the Court’s appropriate action.323
The issue in Echegaray was whether the Supreme Court has jurisdiction to control the execution and
enforcement of its judgment. The discussion on the expanded powers of the Supreme Court in Section 5(5)
of Article VIII of the Constitution was made in this context. It is not to be taken as justification for the Court
to usurp powers vested upon other departments. Thus, after this Court in that case said that “[t]he Court
was x x x granted for the first time the power to disapprove rules of procedure of special courts and quasi–
judicial bodies[,]” it continued with the statement:
x x x But most importantly, the 1987 Constitution took away the power of the Congress to repeal, alter, or
supplement rules concerning pleading, practice and procedure. In fine, the power to promulgate rules of
pleading, practice and procedure is no longer shared by this Court with the Congress, more so with the
Executive. If the manifest intent of the 1987 Constitution is to strengthen the independence of the
judiciary, it is inutile to urge, as public respondents do, that this Court has no jurisdiction to
control the process of execution of its decisions, a power conceded to it and which it has
exercised since time immemorial.
To be sure, it is too late in the day for public respondents to assail the jurisdiction of this Court to
control and supervise the implementation of its decision in the case at bar. x x x 324 (Emphasis
supplied)
This court’s power to “promulgate rules for the protection and enforcement of constitutional rights” as stated
in Article VIII, Section 5(5) of the Constitution must be harmonized with the rest of the provision, which
provides:
Section 5. The Supreme Court shall have the following powers:
xxxx
5. Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice,
and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to
the under–privileged. Such rules shall provide a simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not
diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi–judicial
bodies shall remain effective unless disapproved by the Supreme Court. (Emphasis supplied)
The court’s power to issue rules, including rules concerning the protection and enforcement of constitutional
rights, is limited to judicial procedures. We do not have competence to compel the issuance of
administrative procedures. Rules of procedure of quasi–judicial bodies can only be disapproved by the
Supreme Court, but not issued, modified or approved by it.
The Constitution vests the executive power upon the President. He or she, and not the judiciary, exercises
the power of control over all executive departments, bureaus and offices,325 including the Food and Drug
Administration. The judiciary has no administrative power of control or supervision over the Food and Drug
Administration.
Insisting that we can impose, modify or alter rules of the Food and Drug Administration is usurpation of the
executive power of control over administrative agencies. It is a violation of the principle of separation of
powers, which recognizes that “[e]ach department of the government has exclusive cognizance of matters
within its jurisdiction, and is supreme within its own sphere.”326 The system of checks and balances only
allows us to declare, in the exercise of our judicial powers, the Food and Drugs Administration’s acts as
violative of the law or as committed with grave abuse of discretion.327 Such power is further limited by the
requirement of actual case or controversy.328
FINAL NOTE
It is not the Supreme Court alone that can give the full substantive meaning of the provisions of the
Constitution. The rules that aid in reshaping social reality as a result of the invocation and interpretation of
constitutional provisions should be the product of the interrelationship of all constitutional organs.
This case presents us with an opportunity to clearly define our role. We have the power to declare the
meanings of constitutional text with finality. That does not necessarily mean that we do not build on the
experience of the other departments and organs of government. We are part of the constitutional design
that assures that the sovereign people’s will is vetted in many ways. Deference to the outcome in legislative
and executive forums when there is no “actual case or controversy” is also our constitutional duty.
Judicial deference implies that we accept that constitutional role that assures democratic deliberation to
happen in political forums. It proceeds from an understanding that even as we labor and strive for wisdom,
we will never be the repository of all of it. Our status as members of this court is likewise no blanket license
to impose our individual predilections and preferences. Contrary to an esteemed colleague, our privileges
do not include such judicial license.
The judicial temperament is one that accepts that wisdom is better achieved by the collective interaction of
the constitutional bodies. We have no unbounded license to simply act when we want to. That judicial
temperament ensures the Rule of Law.
The President approved the Responsible Parenthood and Reproductive Health Act of 2012 or Republic Act
No. 10354 on December 21, 2012. It now defines the political consensus within Congress and with the
President. The law took five (5) Congresses or not less than thirteen (13) years to complete.329 Plenary
debates in both the House of Representatives and in the Senate were covered live by public television.
Whole communities were riveted by the debates. Newspaper columnists weighed in with their ideas. Public
forums were filled with heated discussion on the merits and demerits of every provision. Catholic pulpits
were used to express opinion. Various forms of democratic deliberation and debate translated to political
positions of legislators. Many of these positions were informed by their interpretation of the Constitution and
the needs of their communities. This, in turn, formed into the present provisions of this law.
The petitioners come to us after having lost the majority in full democratic deliberation in the halls of
Congress. They ask us to read the provisions of the law and the implementing rules. Without the benefit of
an actual controversy regarding conflicting rights arising from real facts, they ask us to declare various
provisions formulated by the legislature as unconstitutional. In effect, they ask us to continue to reshape the
political consensus. In effect, they ask us to render an advisory opinion, and on that basis, refine the law.
This is not what we do.
Courts act on conflict of rights arising from actual facts and events. We do not resolve moral, philosophical
or even legal issues barren of facts.
Unwanted pregnancies may result in clinical complications and deaths of women during childbirth,330 of the
fetus while inside the womb331 and of infants soon after they are born.332 Unwanted pregnancies may be the
result of lack of knowledge of the consequences of the sexual act, or it could be due to the lack of
information and access to safe and effective reproductive technologies. The law impliedly accepts that the
choice of intimate relationships is better left to the individual and the influences of their culture, their family,
and their faiths.
The law acknowledges the differential impact of lack of knowledge and access to reproductive health
technologies between the rich and the poor.333 It, therefore, requires that proper information and access be
made more available to those who need it. It mandates the government to intervene at least in order to
provide the right information and, when requested and without coercion, provide access.
The law assumes that informed choices provide greater chances for a better quality of life for families. The
law actively intervenes so that government itself can provide these choices so that the quality of life
improves. More than corporeal existence, it hopes to assure human dignity.
I dissent from the majority’s position that we can review the law. I dissent more vigorously from the
majority’s ruling that some provisions are declared unconstitutional on the basis of speculative facts. In my
view, this law needs to be fully implemented.
Petitioners have come before us driven by their unfailing belief in the moral rightness of their faith and their
causes. Their faith is not to be questioned. Their conviction is solid. But these cases are premature.
But, they are not the only ones who may be affected. They cannot speak for everyone.
There are many burdened mothers who can barely feed their children.
There are mothers who have had to undergo abortion whether intended or unintended because of the
unavailability of information and access to contraception should they have had the right information.
There are mothers who died at childbirth because their pregnancy or their poverty was not their choice.
There are impoverished mothers and fathers who helplessly bore the deaths of their children.
They cannot speak. Because of the dominant morality that surround them, many choose not to speak.
All bear their own unspeakable reality. This law may just be the hope that they deserve.
ACCORDINGLY, I vote to DISMISS these petitions. This law, in my view, gives them a chance. It should be
implemented in full.
SEPARATE OPINION
PUNO, J.:
While I concur in the result of the ponencia of Mr. Justice Carpio, the ruling
on whether or not private respondent Dimaano could invoke her rights against
unreasonable search and seizure and to the exclusion of evidence resulting
therefrom compels this humble opinion. The ponencia states that (t)he correct
issue is whether the Bill of Rights was operative during the interregnum from
February 26, 1986 (the day Corazon C. Aquino took her oath as President) to
March 24, 1986 (immediately before the adoption of the Freedom
Constitution). The majority holds that the Bill of Rights was not operative, thus
private respondent Dimaano cannot invoke the right against unreasonable
search and seizure and the exclusionary right as her house was searched and
her properties were seized during the interregnum or on March 3, 1986. My
disagreement is not with the ruling that the Bill of Rights was not operative at
that time, but with the conclusion that the private respondent has lost and
cannot invoke the right against unreasonable search and seizure and the
exclusionary right. Using a different lens in viewing the problem at hand, I
respectfully submit that the crucial issue for resolution is whether she can
invoke these rights in the absence of a constitution under the extraordinary
circumstances after the 1986 EDSA Revolution. The question boggles the
intellect, and is interesting, to say the least, perhaps even to those not halfinterested in the law. But the question of whether the Filipinos were bereft of
fundamental rights during the one month interregnum is not as perplexing as
the question of whether the world was without a God in the three days that God
[1]
the Son descended into the dead before He rose to life. Nature abhors a
vacuum and so does the law.
I. Prologue
The ponencia suggests that the Constitution, the Bill of Rights in particular,
is the only source of rights, hence in its absence, private respondent Dimaano
cannot invoke her rights against unreasonable search and seizure and to the
exclusion of evidence obtained therefrom. Pushing the ponencias line of
reasoning to the extreme will result in the conclusion that during the one month
interregnum, the people lost their constitutionally guaranteed rights to life,
liberty and property and the revolutionary government was not bound by the
strictures of due process of law. Even before appealing to history and
philosophy, reason shouts otherwise.
The ponencia recognized the EDSA Revolution as a successful
revolution that installed the Aquino government. There is no right to revolt in
the 1973 Constitution, in force prior to February 23-25, 1986. Nonetheless, it is
widely accepted that under natural law, the right of revolution is an inherent right
of the people. Thus, we justified the creation of a new legal order after the 1986
EDSA Revolution, viz:
[2]
From the natural law point of view, the right of revolution has been defined as an
inherent right of a people to cast out their rulers, change their policy or effect radical
reforms in their system of government or institutions by force or a general uprising
when the legal and constitutional methods of making such change have proved
inadequate or are so obstructed as to be unavailable. (H. Black, Handbook of
American Constitutional Law II, 4th edition, 1927) It has been said that the locus of
positive law-making power lies with the people of the state and from there is derived
the right of the people to abolish, to reform and to alter any existing form of
government without regard to the existing constitution. (Political Rights as Political
Questions, The Paradox of Luther v. Borden, 100 Harvard Law Review 1125, 1133
[1987])
[3]
It is my considered view that under this same natural law, private respondent
Dimaano has a right against unreasonable search and seizure and to exclude
evidence obtained as a consequence of such illegal act. To explain my thesis,
I will first lay down the relevant law before applying it to the facts of the case at
bar. Tracking down the elusive law that will govern the case at bar will take us
to the labyrinths of philosophy and history. To be sure, the difficulty of the case
at bar lies less in the application of the law, but more in finding the applicable
law. I shall take up the challenge even if the route takes negotiating, but without
trespassing, on political and religious thickets.
II. Natural Law and Natural Rights
As early as the Greek civilization, man has alluded to a higher, natural
standard or law to which a state and its laws must conform. Sophocles
unmistakably articulates this in his poignant literary piece, Antigone. In this midfifth century Athenian tragedy, a civil war divided two brothers, one died
defending Thebes, and the other, Polyneices, died attacking it. The king
forbade Polyneices burial, commanding instead that his body be left to be
devoured by beasts. But according to Greek religious ideas, only a burial -even
a token one with a handful of earth- could give repose to his soul. Moved by
piety, Polyneices sister, Antigone, disobeyed the command of the king and
buried the body. She was arrested. Brought before the king who asks her if she
knew of his command and why she disobeyed, Antigone replies:
. . .These laws were not ordained of Zeus,
And she who sits enthroned with gods below,
Justice, enacted not these human laws.
Nor did I deem that thou, a mortal man,
Couldst by a breath annul and override
The immutable unwritten laws of heaven.
They were not born today nor yesterday;
They die not; and none knoweth whence they sprang.
[4]
Antigone was condemned to be buried alive for violating the order of the king.
[5]
Aristotle also wrote in his Nicomachean Ethics: Of political justice part is
natural, part legal natural, that which everywhere has the same force and does
not exist by peoples thinking this or that; legal, that which is originally indifferent,
but when it has been laid down is not indifferent, e.g. that a prisoners ransom
shall be mina, or that a goat and not two sheep shall be sacrificed, and again
all the laws that are passed for particular cases, . . . Aristotle states that
(p)articular law is that which each community lays down and applies to its own
members: this is partly written and partly unwritten. Universal law is the law of
Nature. For there really is, as every one to some extent divines, a natural justice
and injustice that is binding on all men, even on those who have no association
or covenant with each other. It is this that Sophocles Antigone clearly means
when she says that the burial of Polyneices was a just act in spite of the
prohibition: she means that it was just by nature.
[6]
[7]
Later, the Roman orator Cicero wrote of natural law in the first century B.C.
in this wise:
True law is right reason in agreement with nature; it is of universal application,
unchanging and everlasting; it summons to duty by its commands, and averts from
wrongdoing by its prohibitions. And it does not lay its commands or prohibitions upon
good men in vain, though neither have any effect on the wicked. It is a sin to try to
alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible
to abolish it entirely. We cannot be freed from its obligations by senate or people, and
we need not look outside ourselves for an expounder or interpreter of it. And there
will not be different laws at Rome and at Athens, or different laws now and in the
future, but one eternal and unchangeable law will be valid for all nations and at all
times, and there will be one master and ruler, that is, God, over us all, for he is the
author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is
fleeing from himself and denying his human nature, and by reason of this very fact he
will suffer the worst penalties, even if he escapes what is commonly considered
punishment.
[8]
This allusion to an eternal, higher, and universal natural law continues from
classical antiquity to this day. The face of natural law, however, has changed
throughout the classical, medieval, modern, and contemporary periods of
history.
In the medieval times, shortly after 1139, Gratian published the Decretum,
a collection and reconciliation of the canon laws in force, which distinguished
between divine or natural law and human law. Similar to the writings of the
earliest Church Fathers, he related this natural law to the Decalogue and to
Christs commandment of love of ones neighbor. The law of nature is that which
is contained in the Law and the Gospel, by which everyone is commanded to
do unto others as he would wish to be done unto him, and is prohibited from
doing unto others that which he would be unwilling to be done unto
himself. This natural law precedes in time and rank all things, such that
statutes whether ecclesiastical or secular, if contrary to law, were to be held null
and void.
[9]
[10]
The following century saw a shift from a natural law concept that was
revelation-centered to a concept related to mans reason and what was
discoverable by it, under the influence of Aristotles writings which were coming
to be known in the West. William of Auxerre acknowledged the human capacity
to recognize good and evil and Gods will, and made reason the criterion of
natural law. Natural law was thus id quod naturalis ratio sine omni deliberatione
aut sine magna dictat esse faciendum or that which natural reason, without
much or even any need of reflection, tells us what we must do. Similarly,
[11]
Alexander
of Hales saw human reason as the basis for recognizing natural
law and St. Bonaventure wrote that what natural reason commands is called
the natural law. By the thirteenth century, natural law was understood as the
law of right reason, coinciding with the biblical law but not derived from it.
[12]
[13]
[14]
Of all the medieval philosophers, the Italian St. Thomas Aquinas is
indisputably regarded as the most important proponent of traditional natural law
theory. He created a comprehensive and organized synthesis of the natural law
theory which rests on both the classical (in particular, Aristotelian philosophy)
and Christian foundation, i.e., on reason and revelation. His version of the
natural law theory rests on his vision of the universe as governed by a single,
self-consistent and overarching system of law under the direction and authority
of God as the supreme lawgiver and judge. Aquinas defined law as an
ordinance of reason for the common good, made by him who has care of the
community, and promulgated. There are four kinds of laws in his natural law
theory: eternal, natural, human, and divine.
[15]
[16]
[17]
First, eternal law. To Aquinas, a law is a dictate of practical reason (which
provides practical directions on how one ought to act as opposed to speculative
reason which provides propositional knowledge of the way things are)
emanating from the ruler who governs a perfect community. Presupposing
that Divine Providence rules the universe, and Divine Providence governs by
divine reason, then the rational guidance of things in God the Ruler of the
universe has the nature of a law. And since the divine reasons conception of
things is not subject to time but is eternal, this kind of law is called eternal
law. In other words, eternal law is that law which is a dictate of Gods reason. It
is the external aspect of Gods perfect wisdom, or His wisdom applied to His
creation. Eternal law consists of those principles of action that God implanted
in creation to enable each thing to perform its proper function in the overall order
of the universe. The proper function of a thing determines what is good and bad
for it: the good consists of performing its function while the bad consists of failing
to perform it.
[18]
[19]
[20]
[21]
Then, natural law. This consists of principles of eternal law which are
specific to human beings as rational creatures. Aquinas explains that law, as a
rule and measure, can be in a person in two ways: in one way, it can be in him
that rules and measures; and in another way, in that which is ruled and
measured since a thing is ruled and measured in so far as it partakes of the rule
or measure. Thus, since all things governed by Divine Providence are regulated
and measured by the eternal law, then all things partake of or participate to a
certain extent in the eternal law; they receive from it certain inclinations towards
their proper actions and ends. Being rational, however, the participation of a
human being in the Divine Providence, is most excellent because he
participates in providence itself, providing for himself and others. He
participates in eternal reason itself and through this, he possesses a natural
inclination to right action and right end. This participation of the rational creature
in the eternal law is called natural law. Hence, the psalmist says: The light of
Thy countenance, O Lord, is signed upon us, thus implying that the light of
natural reason, by which we discern what is good and what is evil, which is the
function of the natural law, is nothing else than an imprint on us of the Divine
light. It is therefore evident that the natural law is nothing else than the rational
creatures participation in the eternal law. In a few words, the natural law is a
rule of reason, promulgated by God in mans nature, whereby man can discern
how he should act.
[22]
[23]
Through natural reason, we are able to distinguish between right and wrong;
through free will, we are able to choose what is right. When we do so, we
participate more fully in the eternal law rather than being merely led blindly to
our proper end. We are able to choose that end and make our compliance with
eternal law an act of self-direction. In this manner, the law becomes in us a rule
and measure and no longer a rule and measure imposed from an external
source. The question that comes to the fore then is what is this end to which
natural law directs rational creatures?
[24]
The first self-evident principle of natural law is that good is to be pursued
and done, and evil is to be avoided. All other precepts of the natural law are
based upon this, so that whatever the practical reason naturally apprehends as
mans good (or evil) belongs to the precept of the natural law as something to
be done or avoided. Because good is to be sought and evil avoided, and good
is that which is in accord with the nature of a given creature or the performance
of a creatures proper function, then the important question to answer is what is
human nature or the proper function of man. Those to which man has a natural
inclination are naturally apprehended by reason as good and must thus be
pursued, while their opposites are evil which must be avoided. Aquinas
identifies the basic inclinations of man as follows:
[25]
[26]
1. To seek the good, including his highest good, which is eternal happiness with
God.
[27]
2. To preserve himself in existence.
3. To preserve the species - that is, to unite sexually.
4. To live in community with other men.
5. To use his intellect and will - that is, to know the truth and to make his own
decision.
[28]
As living creatures, we have an interest in self-preservation; as animals, in
procreation; and as rational creatures, in living in society and exercising our
intellectual and spiritual capacities in the pursuit of knowledge. God put these
inclinations in human nature to help man achieve his final end of eternal
happiness. With an understanding of these inclinations in our human nature,
we can determine by practical reason what is good for us and what is bad. In
this sense, natural law is an ordinance of reason. Proceeding from these
inclinations, we can apply the natural law by deduction, thus: good should be
done; this action is good; this action should therefore be done. Concretely, it
is good for humans to live peaceably with one another in society, thus this
dictates the prohibition of actions such as killing and stealing that harm
society.
[29]
[30]
[31]
[32]
[33]
From the precepts of natural law, human reason needs to proceed to the
more particular determinations or specialized regulations to declare what is
required in particular cases considering societys specific circumstances. These
particular determinations, arrived at by human reason, are called human
laws (Aquinas positive law). They are necessary to clarify the demands of
natural law. Aquinas identifies two ways by which something may be derived
from natural law: first, like in science, demonstrated conclusions are drawn from
principles; and second, as in the arts, general forms are particularized as to
details like the craftsman determining the general form of a house to a particular
shape. Thus, according to Aquinas, some things are derived from natural law
by way of conclusion (such as one must not kill may be derived as a conclusion
from the principle that one should do harm to no man) while some are derived
by way of determination (such as the law of nature has it that the evildoer should
be punished, but that he be punished in this or that way is not directly by natural
law but is a derived determination of it). Aquinas says that both these modes
of derivation are found in the human law. But those things derived as a
conclusion are contained in human law not as emanating therefrom exclusively,
but having some force also from the natural law. But those things which are
derived in the second manner have no other force than that of human law.
[34]
[35]
[36]
Finally, there is divine law which is given by God, i.e., the Old Testament
and the New Testament. This is necessary to direct human life for four
reasons. First, through law, man is directed to proper actions towards his proper
end. This end, which is eternal happiness and salvation, is not proportionate to
his natural human power, making it necessary for him to be directed not just by
natural and human law but by divinely given law. Secondly, because of
uncertainty in human judgment, different people form different judgments on
human acts, resulting in different and even contrary laws. So that man may
know for certain what he ought to do and avoid, it was necessary for man to be
directed in his proper acts by a God-given law for it is certain that such law
cannot err. Thirdly, human law can only judge the external actions of
persons. However, perfection of virtue consists in man conducting himself right
in both his external acts and in his interior motives. The divine law thus
supervenes to see and judge both dimensions. Fourthly, because human law
cannot punish or forbid all evils, since in aiming to do away with all evils it would
do away with many good things and would hinder the advancement of the
common good necessary for human development, divine law is needed. For
example, if human law forbade backbiting gossip, in order to enforce such a
law, privacy and trust that is necessary between spouses and friends would be
severely restricted. Because the price paid to enforce the law would outweigh
the benefits, gossiping ought to be left to God to be judged and punished. Thus,
with divine law, no evil would remain unforbidden and unpunished.
[37]
[38]
Aquinas traditional natural law theory has been advocated, recast and
restated by other scholars up to the contemporary period. But clearly, what
has had a pervading and lasting impact on the Western philosophy of law and
government, particularly on that of the United States of America which heavily
influenced the Philippine system of government and constitution, is the modern
natural law theory.
[39]
In the traditional natural law theory, among which was Aquinas, the
emphasis was placed on moral duties of man -both rulers and subjects- rather
than on rights of the individual citizen.Nevertheless, from this medieval
theoretical background developed modern natural law theories associated with
the gradual development in Europe of modern secular territorial state. These
theories increasingly veered away from medieval theological trappings and
gave particular emphasis to the individual and his natural rights.
[40]
[41]
One far-reaching school of thought on natural rights emerged with the
political philosophy of the English man, John Locke. In the traditional natural
law theory such as Aquinas, the monarchy was not altogether disfavored
because as Aquinas says, the rule of one man is more useful than the rule of
the many to achieve the unity of peace. Quite different from Aquinas, Locke
emphasized that in any form of government, ultimate sovereignty rested in the
people and all legitimate government was based on the consent of the
governed. His political theory was used to justify resistance to Charles II over
the right of succession to the English throne and the Whig Revolution of 168889 by which James II was dethroned and replaced by William and Mary under
[42]
[43]
terms which weakened the power of the crown and strengthened the power of
the Parliament.
[44]
Locke explained his political theory in his major work, Second Treatise of
Government, originally published in 1690, where he adopted the modern view
that human beings enjoyed natural rights in the state of nature, before the
formation of civil or political society. In this state of nature, it is self-evident that
all persons are naturally in a state of perfect freedom to order their actions, and
dispose of their possessions and persons, as they think fit, within the bounds of
the law of nature, without asking leave or depending upon the will of any other
man. Likewise, in the state of nature, it was self-evident that all persons were
in a state of equality, wherein all the power and jurisdiction is reciprocal, no one
having more than another; there being nothing more evident, than that
creatures of the same species and rank, promiscuously born to all the same
advantages of nature, and the use of the same faculties, should also be equal
one amongst another without subordination or subjection . . . Locke quickly
added, however, that though all persons are in a state of liberty, it is not a state
of license for the state of nature has a law of nature to govern it, which obliges
every one: and reason, which is that law, teaches all mankind, who will but
consult it, that being all equal and independent, no one ought to harm another
in his life health, liberty, or possessions. . . Locke also alludes to an
omnipotent, and infinitely wise maker whose workmanship they (mankind) are,
made to last during his (the makers) . . .pleasure. In other words, through
reason, with which human beings arrive at the law of nature prescribing certain
moral conduct, each person can realize that he has a natural right and duty to
ensure his own survival and well-being in the world and a related duty to respect
the same right in others, and preserve mankind. Through reason, human
beings are capable of recognizing the need to treat others as free, independent
and equal as all individuals are equally concerned with ensuring their own lives,
liberties and properties. In this state of nature, the execution of the law of
nature is placed in the hands of every individual who has a right to punish
transgressors of the law of nature to an extent that will hinder its violation. It
may be gathered from Lockes political theory that the rights to life, health, liberty
and property are natural rights, hence each individual has a right to be free from
violent death, from arbitrary restrictions of his person and from theft of his
property. In addition, every individual has a natural right to defend oneself from
and punish those who violate the law of nature.
[45]
[46]
[47]
[48]
[49]
[50]
[51]
[52]
[53]
But although the state of nature is somewhat of an Eden before the fall,
there are two harsh inconveniences in it, as Locke puts them, which adversely
affect the exercise of natural rights. First, natural law being an unwritten code
of moral conduct, it might sometimes be ignored if the personal interests of
certain individuals are involved. Second, without any written laws, and without
any established judges or magistrates, persons may be judges in their own
cases and self-love might make them partial to their side. On the other hand, ill
nature, passion and revenge might make them too harsh to the other
side. Hence, nothing but confusion and disorder will follow. These
circumstances make it necessary to establish and enter a civil society by mutual
agreement among the people in the state of nature, i.e., based on a social
contract founded on trust and consent. Locke writes:
[54]
The only way whereby any one divests himself of his natural liberty, and puts on the
bonds of civil society, is by agreeing with other men to join and unite into a
community for their comfortable, safe, and peaceable living one amongst another, in a
secure enjoyment of their properties (used in the broad sense, referring to life, liberty
and property) and a greater security against any, that are not of it.
[55]
This collective agreement then culminated in the establishment of a civil
government.
Three important consequences of Lockes theory on the origin of civil
government and its significance to the natural rights of individual subjects
should be noted. First, since it was the precariousness of the individuals
enjoyment of his natural and equal right to life, liberty, and property that justified
the establishment of civil government, then the central, overriding purpose of
civil government was to protect and preserve the individuals natural rights. For
just as the formation by individuals of civil or political society had arisen from
their desire to unite for the mutual Preservation of their Lives, Liberties and
Estates, which I (Locke) call by the general name, Property, so, too, did the
same motive underlie - in the second stage of the social contract - their
collective decision to institute civil government. Locke thus maintains, again
using the term property in the broad sense, that, (t)he great and chief end,
therefore, of mens uniting into common-wealths, and putting themselves under
government, is the preservation of their property. Secondly, the central
purpose that has brought a civil government into existence, i.e., the protection
of the individuals natural rights, sets firm limits on the political authority of the
civil government. A government that violates the natural rights of its subjects
has betrayed their trust, vested in it when it was first established, thereby
undermining its own authority and losing its claim to the subjects
obedience. Third and finally, individual subjects have a right of last resort to
collectively resist or rebel against and overthrow a government that has failed
to discharge its duty of protecting the peoples natural rights and has instead
abused its powers by acting in an arbitrary or tyrannical manner. The overthrow
[56]
[57]
[58]
of government, however, does not lead to dissolution of civil society which came
into being before the establishment of civil government.
[59]
Lockes ideas, along with other modern natural law and natural rights
theories, have had a profound impact on American political and legal
thought. American law professor Philip Hamburger observes that American
natural law scholars generally agree that natural law consisted of reasoning
about humans in the state of nature (or absence of government) and tend to
emphasize that they were reasoning from the equal freedom of humans and the
need of humans to preserve themselves. As individuals are equally free, they
did not have the right to infringe the equal rights of others; even selfpreservation typically required individuals to cooperate so as to avoid doing
unto others what they would not have others do unto them. With Lockes theory
of natural law as foundation, these American scholars agree on the well-known
analysis of how individuals preserved their liberty by forming government, i.e.,
that in order to address the insecurity and precariousness of ones life, liberty
and property in the state of nature, individuals, in accordance with the principle
of self-preservation, gave up a portion of their natural liberty to civil government
to enable it to preserve the residue. People must cede to [government] some
of their natural rights, in order to vest it with powers. That individuals give up
a part of their natural rights to secure the rest in the modern natural law sense
is said to be an old hackneyed and well known principle thus:
[60]
[61]
[62]
[63]
[64]
That Man, on entering into civil society, of necessity, sacrifices a part of his natural
liberty, has been pretty universally taken for granted by writers on government. They
seem, in general, not to have admitted a doubt of the truth of the proposition. One
feels as though it was treading on forbidden ground, to attempt a refutation of what
has been advanced by a Locke, a Bacari[a], and some other writers and statesmen.
[65]
But, while Lockes theory showed the necessity of civil society and government,
it was careful to assert and protect the individuals rights against government
invasion, thus implying a theory of limited government that both restricted the
role of the state to protect the individuals fundamental natural rights to life,
liberty and property and prohibited the state, on moral grounds, from violating
those rights. The natural rights theory, which is the characteristic American
interpretation of natural law, serves as the foundation of the well-entrenched
concept of limited government in the United States. It provides the theoretical
basis of the formulation of limits on political authority vis--vis the superior right
of the individual which the government should preserve.
[66]
[67]
Lockes ideas undoubtedly influenced Thomas Jefferson, the eminent
statesman and philosopher of the (American) revolution and of the first
constitutional order which free men were permitted to establish. Jefferson
[68]
espoused Lockes theory that man is free in the state of nature. But while Locke
limited the authority of the state with the doctrine of natural rights, Jeffersons
originality was in his use of this doctrine as basis for a fundamental law or
constitution established by the people. To obviate the danger that the
government would limit natural liberty more than necessary to afford protection
to the governed, thereby becoming a threat to the very natural liberty it was
designed to protect, people had to stipulate in their constitution which natural
rights they sacrificed and which not, as it was important for them to retain those
portions of their natural liberty that were inalienable, that facilitated the
preservation of freedom, or that simply did not need to be sacrificed. Two
ideas are therefore fundamental in the constitution: one is the regulation of the
form of government and the other, the securing of the liberties of the
people. Thus, the American Constitution may be understood as comprising
three elements. First, it creates the structure and authority of a republican form
of government; second, it provides a division of powers among the different
parts of the national government and the checks and balances of these powers;
and third, it inhibits governments power vis--vis the rights of individuals, rights
existent and potential, patent and latent. These three parts have one prime
objective: to uphold the liberty of the people.
[69]
[70]
[71]
[72]
But while the constitution guarantees and protects the fundamental rights of
the people, it should be stressed that it does not create them. As held by many
of the American Revolution patriots, liberties do not result from charters;
charters rather are in the nature of declarations of pre-existing rights. John
Adams, one of the patriots, claimed that natural rights are founded in the frame
of human nature, rooted in the constitution of the intellect and moral
world. Thus, it is said of natural rights vis--vis the constitution:
[73]
[74]
. . . (t)hey exist before constitutions and independently of them. Constitutions
enumerate such rights and provide against their deprivation or infringement, but
do not create them. It is supposed that all power, all rights, and all authority are
vested in the people before they form or adopt a constitution. By such an instrument,
they create a government, and define and limit the powers which the constitution is to
secure and the government respect. But they do not thereby invest the citizens of the
commonwealth with any natural rights that they did not before possess. (emphasis
supplied)
[75]
A constitution is described as follows:
A Constitution is not the beginning of a community, nor the origin of private rights; it
is not the fountain of law, nor the incipient state of government; it is not the cause, but
consequence, of personal and political freedom; it grants no rights to the people, but is
the creature of their power, the instrument of their convenience. Designed for their
protection in the enjoyment of the rights and powers which they possessed before
the Constitution was made, it is but the framework of the political government, and
necessarily based upon the preexisting condition of laws, rights, habits and modes of
thought.There is nothing primitive in it; it is all derived from a known source. It
presupposes an organized society, law, order, propriety, personal freedom, a love of
political liberty, and enough of cultivated intelligence to know how to guard against
the encroachments of tyranny. (emphasis supplied)
[76]
That Lockes modern natural law and rights theory was influential to those
who framed and ratified the United States constitution and served as its
theoretical foundation is undeniable. In a letter in which George Washington
formally submitted the Constitution to Congress in September 1787, he spoke
of the difficulties of drafting the document in words borrowed from the standard
eighteenth-century natural rights analysis:
[77]
Individuals entering into society, must give up a share of liberty to preserve the
rest. The magnitude of the sacrifice must depend as well on situation and
circumstance, as on the object to be obtained. It is at all times difficult to draw with
precision the line between those rights which must be surrendered, and those which
may be reserved . . . . (emphasis supplied)
[78]
Natural law is thus to be understood not as a residual source of constitutional
rights but instead, as the reasoning that implied the necessity to sacrifice natural
liberty to government in a written constitution. Natural law and natural rights
were concepts that explained and justified written constitutions.
[79]
With the establishment of civil government and a constitution, there arises
a conceptual distinction between natural rights and civil rights, difficult though
to define their scope and delineation. It has been proposed that natural
rights are those rights that appertain to man in right of his existence. These
were fundamental rights endowed by God upon human beings, all those rights
of acting as an individual for his own comfort and happiness, which are not
injurious to the natural rights of others. On the other hand, civil rights are those
that appertain to man in right of his being a member of society. These rights,
however, are derived from the natural rights of individuals since:
[80]
[81]
[82]
Man did not enter into society to become worse off than he was before, nor to have
fewer rights than he had before, but to have those rights better secured. His natural
rights are the foundation of all his rights.
[83]
Civil rights, in this sense, were those natural rights particularly rights to
security and protection which by themselves, individuals could not safeguard,
rather requiring the collective support of civil society and government. Thus, it
is said:
Every civil right has for its foundation, some natural right pre-existing in the
individual, but to the enjoyment of which his individual power is not, in all cases,
sufficiently competent.
[84]
The distinction between natural and civil rights is between that class of natural
rights which man retains after entering into society, and those which he throws
into the common stock as a member of society. The natural rights retained by
the individuals after entering civil society were all the intellectual rights, or rights
of the mind, i.e., the rights to freedom of thought, to freedom of religious belief
and to freedom of expression in its various forms. The individual could exercise
these rights without government assistance, but government has the role of
protecting these natural rights from interference by others and of desisting from
itself infringing such rights. Government should also enable individuals to
exercise more effectively the natural rights they had exchanged for civil rights
like the rights to security and protection - when they entered into civil society.
[85]
[86]
[87]
American natural law scholars in the 1780s and early 1790s occasionally
specified which rights were natural and which were not. On the Lockean
assumption that the state of naturewas a condition in which all humans were
equally free from subjugation to one another and had no common superior,
American scholars tended to agree that natural liberty was the freedom of
individuals in the state of nature. Natural rights were understood to be simply
a portion of this undifferentiated natural liberty and were often broadly
categorized as the rights to life, liberty, and property; or life, liberty and the
pursuit of happiness. More specifically, they identified as natural rights the free
exercise of religion, freedom of conscience, freedom of speech and press,
right to self-defense, right to bear arms, right to assemble and right to ones
reputation. In contrast, certain other rights, such as habeas corpus and jury
rights, do not exist in the state of nature, but exist only under the laws of civil
government or the constitution because they are essential for restraining
government. They are called civil rights not only in the sense that they are
protected by constitutions or other laws, but also in the sense that they are
acquired rights which can only exist under civil government.
[88]
[89]
[90]
[91]
[92]
In his Constitutional Law, Black states that natural rights may be used to
describe those rights which belong to man by virtue of his nature and depend
upon his personality. His existence as an individual human being, clothed with
certain attributes, invested with certain capacities, adapted to certain kind of
life, and possessing a certain moral and physical nature, entitles him, without
the aid of law, to such rights as are necessary to enable him to continue his
existence, develop his faculties, pursue and achieve his destiny. An example
of a natural right is the right to life. In an organized society, natural rights must
be protected by law, and although they owe to the law neither their existence
nor their sacredness, yet they are effective only when recognized and
sanctioned by law. Civil rights include natural rights as they are taken into the
sphere of law. However, there are civil rights which are not natural rights such
as the right of trial by jury. This right is not founded in the nature of man, nor
does it depend on personality, but it falls under the definition of civil rights which
are the rights secured by the constitution to all its citizens or inhabitants not
connected with the organization or administration of government which belong
to the domain of political rights. Natural rights are the same all the world over,
though they may not be given the fullest recognition under all
governments. Civil rights which are not natural rights will vary in different states
or countries.
[93]
[94]
[95]
From the foregoing definitions and distinctions, we can gather that the
inclusions in and exclusions from the scope of natural rights and civil rights are
not well-defined. This is understandable because these definitions are derived
from the nature of man which, in its profundity, depth, and fluidity, cannot simply
and completely be grasped and categorized. Thus, phrases such as rights
appertain(ing) to man in right of his existence, or rights which are a portion of
mans undifferentiated natural liberty, broadly categorized as the rights to life,
liberty, and property; or life, liberty and the pursuit of happiness, or rights that
belong to man by virtue of his nature and depend upon his personality serve as
guideposts in identifying a natural right. Nevertheless, although the definitions
of natural right and civil right are not uniform and exact, we can derive from the
foregoing definitions that natural rights exist prior to constitutions, and may be
contained in and guaranteed by them. Once these natural rights enter the
constitutional or statutory sphere, they likewise acquire the character of civil
rights in the broad sense (as opposed to civil rights distinguished from political
rights), without being stripped of their nature as natural rights. There are,
however, civil rights which are not natural rights but are merely created and
protected by the constitution or other law such as the right to a jury trial.
Long after Locke conceived of his ideas of natural rights, civil society, and
civil government, his concept of natural rights continued to flourish in the
modern and contemporary period.About a hundred years after the Treatise of
Government, Lockes natural law and rights theory was restated by the
eighteenth-century political thinker and activist, Thomas Paine. He wrote his
classic text, The Rights of Man, Part 1 where he argued that the central purpose
of all governments was to protect the natural and imprescriptible rights of
man. Citing the 1789 French Declaration of the Rights of Man and of Citizens,
Paine identified these rights as the right to liberty, property, security and
resistance of oppression. All other civil and political rights - such as to limits on
government, to freedom to choose a government, to freedom of speech, and to
fair taxation - were derived from those fundamental natural rights.
[96]
Paine inspired and actively assisted the American Revolution and defended
the French Revolution. His views were echoed by the authors of the American
and the French declarations that accompanied these democratic
revolutions. The American Declaration of Independence of July 4, 1776, the
revolutionary manifesto of the thirteen newly-independent states of America
that were formerly colonies of Britain, reads:
[97]
We hold these Truths to be self-evident, that all Men are created equal, that they are
endowed by their Creator with certain inalienable Rights, that among these are Life,
Liberty, and the Pursuit of Happiness.That to secure these Rights, Governments are
instituted among Men, deriving their just Powers from the Consent of the Governed,
that whenever any Form of Government becomes destructive of these Ends, it is the
Right of the People to alter or to abolish it, and to institute new Government, laying its
Foundation on such Principles, and organizing its Powers in such Form as to them
shall seem most likely to effect their Safety and Happiness. (emphasis supplied)
[98]
His phrase rights of man was used in the 1789 French Declaration of the Rights
of Man and of Citizens, proclaimed by the French Constituent Assembly in
August 1789, viz:
The representatives of the French people, constituted in a National Assembly,
considering that ignorance, oblivion or contempt of the Rights of Man are the only
causes of public misfortunes and of the corruption of governments, have resolved to
lay down in a solemn Declaration, the natural, inalienable and sacred Rights of
Man, in order that this Declaration, being always before all the members of the Social
Body, should constantly remind them of their Rights and their Duties. . . (emphasis
supplied)
[99]
Thereafter, the phrase rights of man gradually replaced natural rights in the
latter period of the eighteenth century, thus removing the theological
assumptions of medieval natural law theories. After the American and French
Revolutions, the doctrine of the rights of man became embodied not only in
succinct declarations of rights, but also in new constitutions which emphasized
the need to uphold the natural rights of the individual citizen against other
individuals and particularly against the state itself.
[100]
Considerable criticism was, however, hurled against natural law and natural
rights theories, especially by the logical positivist thinkers, as these theories
were not empirically verifiable.Nevertheless, the concept of natural rights or
rights of man regained force and influence in the 1940s because of the growing
awareness of the wide scale violation of such rights perpetrated by the Nazi
dictatorship in Germany. The British leader Winston Churchill and the American
leader Franklin Roosevelt stated in the preface of their Atlantic Charter in 1942
that complete victory over their enemies is essential to decent life, liberty,
independence and religious freedom, and to preserve human rights and
justice, in their own land as well as in other lands. (emphasis supplied) This
time, natural right was recast in the idea of human rights which belong to every
human being by virtue of his or her humanity. The idea superseded the
traditional concept of rights based on notions of God-given natural law and of
social contract. Instead, the refurbished idea of human rights was based on the
assumption that each individual person was entitled to an equal degree of
respect as a human being.
[101]
With this historical backdrop, the United Nations Organization published in
1948 its Universal Declaration of Human Rights (UDHR) as a systematic
attempt to secure universal recognition of a whole gamut of human rights. The
Declaration affirmed the importance of civil and political rights such as the rights
to life, liberty, property; equality before the law; privacy; a fair trial; freedom of
speech and assembly, of movement, of religion, of participation in government
directly or indirectly; the right to political asylum, and the absolute right not to
be tortured.Aside from these, but more controversially, it affirmed the
importance of social and economic rights. The UDHR is not a treaty and its
provisions are not binding law, but it is a compromise of conflicting ideological,
philosophical, political, economic, social and juridical ideas which resulted from
the collective effort of 58 states on matters generally considered desirable and
imperative. It may be viewed as a blending (of) the deepest convictions and
ideals of different civilizations into one universal expression of faith in the rights
of man.
[102]
[103]
On December 16, 1966, the United Nations General Assembly adopted the
International Covenant on Economic, Social and Cultural Rights (ICESCR) and
the International Covenant on Civil and Political Rights (ICCPR) and the
Optional Protocol to the Civil and Political Rights providing for the mechanism
of checking state compliance to the international human rights instruments such
as through a reportorial requirement among governments. These treaties
entered into force on March 23, 1976 and are binding as international law
upon governments subscribing to them. Although admittedly, there will be
differences in interpreting particular statements of rights and freedoms in these
[104]
United Nations instruments in the light of varied cultures and historical
traditions, the basis of the covenants is a common agreement on the
fundamental objective of the dignity and worth of the human person. Such
agreement is implied in adherence to the (United Nations) Charter and
corresponds to the universal urge for freedom and dignity which strives for
expression, despite varying degrees of culture and civilization and despite the
countervailing forces of repression and authoritarianism.
[105]
Human rights and fundamental freedoms were affirmed by the United
Nations Organization in the different instruments embodying these rights not
just as a solemn protest against the Nazi-fascist method of government, but
also as a recognition that the security of individual rights, like the security of
national rights, was a necessary requisite to a peaceful and stable world
order. Moskowitz wrote:
[106]
The legitimate concern of the world community with human rights and fundamental
freedoms stems in large part from the close relation they bear to the peace and
stability of the world. World War II and its antecedents, as well as contemporary
events, clearly demonstrate the peril inherent in the doctrine which accepts the state as
the sole arbiter in questions pertaining to the rights and freedoms of the citizen.The
absolute power exercised by a government over its citizens is not only a source of
disorder in the international community; it can no longer be accepted as the only
guaranty of orderly social existence at home. But orderly social existence is ultimately
a matter which rests in the hands of the citizen. Unless the citizen can assert his
human rights and fundamental freedoms against his own government under the
protection of the international community, he remains at the mercy of the superior
power.
[107]
Similar to natural rights and civil rights, human rights as the refurbished idea
of natural right in the 1940s, eludes definition. The usual definition that it is the
right which inheres in persons from the fact of their humanity seemingly begs
the question. Without doubt, there are certain rights and freedoms so
fundamental as to be inherent and natural such as the integrity of the person
and equality of persons before the law which should be guaranteed by all
constitutions of all civilized countries and effectively protected by their laws. It
is nearly universally agreed that some of those rights are religious toleration, a
general right to dissent, and freedom from arbitrary punishment. It is not
necessarily the case, however, that what the law guarantees as a human right
in one country should also be guaranteed by law in all other countries. Some
human rights might be considered fundamental in some countries, but not in
others. For example, trial by jury which we have earlier cited as an example of
a civil right which is not a natural right, is a basic human right in the United
[108]
[109]
States protected by its constitution, but not so in Philippine jurisdiction. Similar
to natural rights, the definition of human rights is derived from human nature,
thus understandably not exact. The definition that it is a right which inheres in
persons from the fact of their humanity, however, can serve as a guideline to
identify human rights. It seems though that the concept of human rights is
broadest as it encompasses a human persons natural rights (e.g., religious
freedom) and civil rights created by law (e.g. right to trial by jury).
[110]
In sum, natural law and natural rights are not relic theories for academic
discussion, but have had considerable application and influence. Natural law
and natural rights theories have played an important role in the Declaration of
Independence, the Abolition (anti-slavery) movement, and parts of the modern
Civil Rights movement. In charging Nazi and Japanese leaders with crimes
against humanity at the end of the Second World War, Allied tribunals in 1945
invoked the traditional concept of natural law to override the defense that those
charged had only been obeying the laws of the regimes they
served. Likewise, natural law, albeit called by another name such as
substantive due process which is grounded on reason and fairness, has served
as legal standard for international law, centuries of development in the English
common law, and certain aspects of American constitutional law. In
controversies involving the Bill of Rights, the natural law standards of
reasonableness and fairness or justified on balance are used. Questions such
as these are common: Does this form of government involvement with religion
endanger religious liberty in a way that seems unfair to some group? Does
permitting this restriction on speech open the door to government abuse of
political opponents? Does this police investigative practice interfere with
citizens legitimate interests in privacy and security? Undeniably, natural law
and natural rights theories have carved their niche in the legal and political
arena.
[111]
[112]
[113]
[114]
III. Natural Law and Natural Rights
in Philippine Cases and the Constitution
A. Traces of Natural Law and
Natural Rights Theory in Supreme Court Cases
Although the natural law and natural rights foundation is not articulated,
some Philippine cases have made reference to natural law and rights without
raising controversy. For example, in People v. Asas, the Court admonished
courts to consider cautiously an admission or confession of guilt especially
[115]
when it is alleged to have been obtained by intimidation and force.The Court
said: (w)ithal, aversion of man against forced self-affliction is a matter of Natural
Law. In People v. Agbot, we did not uphold lack of instruction as an excuse
for killing because we recognized the offense of taking ones life being forbidden
by natural law and therefore within instinctive knowledge and feeling of every
human being not deprived of reason. In Mobil Oil Philippines, Inc. v.
Diocares, et al., Chief Justice Fernando acknowledged the influence of
natural law in stressing that the element of a promise is the basis of
contracts.In Manila Memorial Park Cemetery, Inc. v. Court of Appeals, et
al., the Court invoked the doctrine of estoppel which we have repeatedly
pronounced is predicated on, and has its origin in equity, which broadly defined,
is justice according to natural law. In Yu Con v. Ipil, et al., we recognized the
application of natural law in maritime commerce.
[116]
[117]
[118]
[119]
[120]
[121]
The Court has also identified in several cases certain natural rights such as
the right to liberty, the right of expatriation, the right of parents over their
children which provides basis for a parents visitorial rights over his illegitimate
children, and the right to the fruits of ones industry.
[122]
[123]
[124]
[125]
In Simon, Jr. et al. v. Commission on Human Rights, the Court
defined human rights, civil rights, and political rights. In doing so, we
considered the United Nations instruments to which the Philippines is a
signatory, namely the UDHR which we have ruled in several cases as binding
upon the Philippines, the ICCPR and the ICESCR. Still, we observed that
human rights is so generic a term that at best, its definition is inconclusive. But
the term human rights is closely identified to the universally accepted traits and
attributes of an individual, along with what is generally considered to be his
inherent and inalienable rights, encompassing almost all aspects of life, i.e.,
the individuals social, economic, cultural, political and civil relations. On the
other hand, we defined civil rights as referring to:
[126]
[127]
[128]
[129]
. . . those (rights) that belong to every citizen of the state or country, or, in a wider
sense, to all inhabitants, and are not connected with the organization or administration
of government. They include the rights to property, marriage, equal protection of the
laws, freedom of contract, etc. Or, as otherwise defined, civil rights are rights
appertaining to a person by virtue of his citizenship in a state or community. Such
term may also refer, in its general sense, to rights capable of being enforced or
redressed in a civil action.
[130]
Guarantees against involuntary servitude, religious persecution, unreasonable
searches and seizures, and imprisonment for debt are also identified as civil
rights. The Courts definition of civil rights was made in light of their distinction
from political rights which refer to the right to participate, directly or indirectly, in
[131]
the establishment or administration of government, the right of suffrage, the
right to hold public office, the right of petition and, in general, the rights
appurtenant to citizenship vis-a-vis the management of government.
[132]
To distill whether or not the Courts reference to natural law and natural rights
finds basis in a natural law tradition that has influenced Philippine law and
government, we turn to Philippine constitutional law history.
B. History of the Philippine Constitution
and the Bill of Rights
During the Spanish colonization of the Philippines, Filipinos ardently fought
for their fundamental rights. The Propaganda Movement spearheaded by our
national hero Jose Rizal, Marcelo H. del Pilar, and Graciano Lopez-Jaena
demanded assimilation of the Philippines by Spain, and the extension to
Filipinos of rights enjoyed by Spaniards under the Spanish Constitution such as
the inviolability of person and property, specifically freedom from arbitrary action
by officialdom particularly by the Guardia Civil and from arbitrary detention and
banishment of citizens. They clamored for their right to liberty of conscience,
freedom of speech and the press, freedom of association, freedom of worship,
freedom to choose a profession, the right to petition the government for redress
of grievances, and the right to an opportunity for education. They raised the roof
for an end to the abuses of religious corporations.
[133]
With the Propaganda Movement having apparently failed to bring about
effective reforms, Andres Bonifacio founded in 1892 the secret society of
the Katipunan to serve as the military arm of the secessionist movement whose
principal aim was to create an independent Filipino nation by armed
revolution. While preparing for separation from Spain, representatives of the
movement engaged in various constitutional projects that would reflect the
longings and aspirations of the Filipino people. On May 31, 1897, a republican
government was established in Biak-na-Bato, followed on November 1, 1897
by the unanimous adoption of the Provisional Constitution of the Republic of the
Philippines, popularly known as the Constitution of Biak-na-Bato, by the
revolutions representatives. The document was an almost exact copy of the
Cuban Constitution of Jimaguayu, except for four articles which its authors
Felix Ferrer and Isabelo Artacho added. These four articles formed the
constitutions Bill of Rights and protected, among others, religious liberty, the
right of association, freedom of the press, freedom from imprisonment except
by virtue of an order issued by a competent court, and freedom from deprivation
[134]
[135]
of property or domicile except by virtue of judgment passed by a competent
court of authority.
[136]
The Biak-na-Bato Constitution was projected to have a life-span of two
years, after which a final constitution would be drafted. Two months after it was
adopted, however, the Pact of Biak-na-Bato was signed whereby the Filipino
military leaders agreed to cease fighting against the Spaniards and guaranteed
peace for at least three years, in exchange for monetary indemnity for the
Filipino men in arms and for promised reforms. Likewise, General Emilio
Aguinaldo, who by then had become the military leader after Bonifacios death,
agreed to leave the Philippines with other Filipino leaders. They left for
Hongkong in December 1897.
A few months later, the Spanish-American war broke out in April 1898. Upon
encouragement of American officials, Aguinaldo came back to the Philippines
and set up a temporary dictatorial government with himself as dictator. In June
1898, the dictatorship was terminated and Aguinaldo became the President of
the Revolutionary Government. By this time, the relations between the
American troops and the Filipino forces had become precarious as it became
more evident that the Americans planned to stay. In September 1898, the
Revolutionary Congress was inaugurated whose primary goal was to formulate
and promulgate a Constitution. The fruit of their efforts was the Malolos
Constitution which, as admitted by Felipe Calderon who drafted it, was based
on the constitutions of South American Republics while the Bill of Rights was
substantially a copy of the Spanish Constitution. The Bill of Rights included
among others, freedom of religion, freedom from arbitrary arrests and
imprisonment, security of the domicile and of papers and effects against
arbitrary searches and seizures, inviolability of correspondence, due process in
criminal prosecutions, freedom of expression, freedom of association, and right
of peaceful petition for the redress of grievances. Its Article 28 stated that (t)he
enumeration of the rights granted in this title does not imply the prohibition of
any others not expressly stated. This suggests that natural law was the
source of these rights. The Malolos Constitution was short-lived. It went into
effect in January 1899, about two months before the ratification of the Treaty of
Paris transferring sovereignty over the Islands to the United States. Within a
month after the constitutions promulgation, war with the United States began
and the Republic survived for only about ten months. On March 23, 1901,
American forces captured Aguinaldo and a week later, he took his oath of
allegiance to the United States.
[137]
[138]
[139]
[140]
[141]
[142]
In the early months of the war against the United States, American
President McKinley sent the First Philippine Commission headed by Jacob
Gould Schurman to assess the Philippine situation. On February 2, 1900, in its
report to the President, the Commission stated that the Filipino people
wanted above all a guarantee of those fundamental human rights which
Americans hold to be the natural and inalienable birthright of the
individual but which under Spanish domination in the Philippines had
been shamefully invaded and ruthlessly trampled upon. (emphasis
supplied) In response to this, President McKinley, in his Instruction of April 7,
1900 to the Second Philippine Commission, provided an authorization and
guide for the establishment of a civil government in the Philippines and stated
that (u)pon every division and branch of the government of the Philippines . . .
must be imposed these inviolable rules . . . These inviolable rules were almost
literal reproductions of the First to Ninth and the Thirteenth Amendment of the
United States Constitution, with the addition of the prohibition of bills of attainder
and ex post facto laws in Article 1, Section 9 of said Constitution. The inviolable
rules or Bill of Rights provided, among others, that no person shall be deprived of
life, liberty, or property without due process of law; that no person shall be twice
put in jeopardy for the same offense or be compelled to be a witness against
himself; that the right to be secure against unreasonable searches and seizures
shall not be violated; that no law shall be passed abridging the freedom of speech
or of the press or of the rights of the people to peaceably assemble and petition
the Government for redress of grievances. Scholars have characterized
the Instruction as the Magna Charta of the Philippines and as a worthy rival of the
Laws of the Indies.
[143]
[144]
The inviolable rules of the Instruction were re-enacted almost exactly in the
Philippine Bill of 1902, an act which temporarily provided for the
administration of the affairs of the civil government in the Philippine
Islands, and in the Philippine Autonomy Act of 1916, otherwise known as
the Jones Law, which was an act to declare the purpose of the people of the
United States as to the future of the Philippine Islands and to provide an
autonomous government for it. These three organic acts - the Instruction, the
Philippine Bill of 1902, and the Jones Law - extended the guarantees of the
American Bill of Rights to the Philippines. In Kepner v. United
States, Justice Day prescribed the methodology for applying these inviolable
rules to the Philippines, viz: (t)hese principles were not taken from the Spanish
law; they were carefully collated from our own Constitution, and embody almost
verbatim the safeguards of that instrument for the protection of life and
liberty. Thus, the inviolable rules should be applied in the sense which
has been placed upon them in construing the instrument from which they
were taken. (emphasis supplied)
[145]
[146]
[147]
[148]
[149]
[150]
[151]
Thereafter, the Philippine Independence Law, popularly known as the
Tydings-McDuffie Law of 1934, was enacted. It guaranteed independence to
the Philippines and authorized the drafting of a Philippine Constitution. The law
provided that the government should be republican in form and the Constitution
to be drafted should contain a Bill of Rights. Thus, the Constitutional
Convention of 1934 was convened. In drafting the Constitution, the Convention
preferred to be generally conservative on the belief that to be stable and
permanent, the Constitution must be anchored on the experience of the people,
providing for institutions which were the natural outgrowths of the national
life. As the people already had a political organization buttressed by national
traditions, the Constitution was to sanctify these institutions tested by time and
the Filipino peoples experience and to confirm the practical and substantial
rights of the people. Thus, the institutions and philosophy adopted in the
Constitution drew substantially from the organic acts which had governed the
Filipinos for more than thirty years, more particularly the Jones Law of 1916. In
the absence of Philippine precedents, the Convention considered precedents
of American origin that might be suitable to our substantially American political
system and to the Filipino psychology and traditions. Thus, in the words of
Claro M. Recto, President of the Constitutional Convention, the 1935
Constitution was frankly an imitation of the American charter.
[152]
[153]
[154]
[155]
Aside from the heavy American influence, the Constitution also bore traces
of the Malolos Constitution, the German Constitution, the Constitution of the
Republic of Spain, the Mexican Constitution, and the Constitutions of several
South American countries, and the English unwritten constitution. Though the
Tydings-McDuffie law mandated a republican constitution and the inclusion of
a Bill of Rights, with or without such mandate, the Constitution would have
nevertheless been republican because the Filipinos were satisfied with their
experience of a republican government; a Bill of Rights would have nonetheless
been also included because the people had been accustomed to the role of a
Bill of Rights in the past organic acts.
[156]
The Bill of Rights in the 1935 Constitution was reproduced largely from the
report of the Conventions committee on bill of rights. The report was mostly a
copy of the Bill of Rights in the Jones Law, which in turn was borrowed from the
American constitution. Other provisions in the report drew from the Malolos
Constitution and the constitutions of the Republic of Spain, Italy and Japan.
There was a conscious effort to retain the phraseology of the well-known
provisions of the Jones Law because of the jurisprudence that had built around
them. The Convention insistently avoided including provisions in the Bill of
Rights not tested in the Filipino experience. Thus, upon submission of its draft
bill of rights to the President of the Convention, the committee on bill of rights
stated:
[157]
Adoption and adaptation have been the relatively facile work of your committee in the
formulation of a bill or declaration of rights to be incorporated in the Constitution of
the Philippine Islands. No attempt has been made to incorporate new or radical
changes. . .
The enumeration of individual rights in the present organic law (Acts of Congress of
July 1, 1902, August 29, 1916) is considered ample, comprehensive and precise
enough to safeguard the rights and immunities of Filipino citizens against abuses or
encroachments of the Government, its powers or agents. . .
Modifications or changes in phraseology have been avoided, wherever possible. This
is because the principles must remain couched in a language expressive of their
historical background, nature, extent and limitations, as construed and
expounded by the great statesmen and jurists that have vitalized
them. (emphasis supplied)
[158]
The 1935 Constitution was approved by the Convention on February 8,
1935 and signed on February 19, 1935. On March 23, 1935, United States
President Roosevelt affixed his signature on the Constitution. By an
overwhelming majority, the Filipino voters ratified it on May 14, 1935.
[159]
Then dawned the decade of the 60s. There grew a clamor to revise the 1935
charter for it to be more responsive to the problems of the country, specifically
in the socio-economic arena and to the sources of threats to the security of the
Republic identified by then President Marcos. In 1970, delegates to the
Constitution Convention were elected, and they convened on June 1, 1971. In
their deliberations, the spirit of moderation prevailed, and the . . . Constitution
was hardly notable for its novelty, much less a radical departure from our
constitutional tradition. Our rights in the 1935 Constitution were reaffirmed and
the government to which we have been accustomed was instituted, albeit taking
on a parliamentary rather than presidential form.
[160]
[161]
The Bill of Rights in the 1973 Constitution had minimal difference from its
counterpart in the 1935 Constitution. Previously, there were 21 paragraphs in
one section, now there were twenty-three. The two rights added were the
recognition of the peoples right to access to official records and documents and
the right to speedy disposition of cases. To the right against unreasonable
searches and seizures, a second paragraph was added that evidence obtained
therefrom shall be inadmissible for any purpose in any proceeding.
[162]
The 1973 Constitution went into effect on January 17, 1973 and remained
the fundamental law until President Corazon Aquino rose to power in defiance
of the 1973 charter and upon the direct exercise of the power of the Filipino
people in the EDSA Revolution of February 23-25, 1986. On February 25,
1986, she issued Proclamation No. 1 recognizing that sovereignty resides in
the people and all government authority emanates from them and that she and
Vice President Salvador Laurel were taking power in the name and by the will
of the Filipino people. The old legal order, constitution and enactments alike,
was overthrown by the new administration. A month thenceforth, President
Aquino issued Proclamation No. 3, Declaring National Policy to Implement the
Reforms Mandated by the People, Protecting their Basic Rights, Adopting a
Provisional Constitution, and Providing for an Orderly Transition to Government
under a New Constitution. The Provisional Constitution, otherwise known as the
Freedom Constitution adopted certain provisions of the 1973 Constitution,
including the Bill of Rights which was adopted in toto, and provided for the
adoption of a new constitution within 60 days from the date of Proclamation No.
3.
[163]
[164]
[165]
[166]
Pursuant to the Freedom Constitution, the 1986 Constitutional Commission
drafted the 1987 Constitution which was ratified and became effective on
February 2, 1987. As in the 1935 and 1973 Constitutions, it retained a
republican system of government, but emphasized and created more channels
for the exercise of the sovereignty of the people through recall, initiative,
referendum and plebiscite. Because of the wide-scale violation of human
rights during the dictatorship, the 1987 Constitution contains a Bill of Rights
which more jealously safeguards the peoples fundamental liberties in the
essence of a constitutional democracy, in the words of ConCom delegate Fr.
Joaquin Bernas, S.J. It declares in its state policies that (t)he state values the
dignity of every human person and guarantees full respect for human
rights. In addition, it has a separate Article on Social Justice and Human
Rights, under which, the Commission on Human Rights was created.
[167]
[168]
[169]
[170]
[171]
Considering the American model and origin of the Philippine constitution, it
is not surprising that Filipino jurists and legal scholars define and explain the
nature of the Philippine constitution in similar terms that American constitutional
law scholars explain their constitution. Chief Justice Fernando, citing Laski,
wrote about the basic purpose of a civil society and government, viz:
The basic purpose of a State, namely to assure the happiness and welfare of its
citizens is kept foremost in mind. To paraphrase Laski, it is not an end in itself but
only a means to an end, the individuals composing it in their separate and
identifiable capacities having rights which must be respected. It is their happiness
then, and not its interest, that is the criterion by which its behavior is to be judged;
and it is their welfare, and not the force at its command, that sets the limits to the
authority it is entitled to exercise. (emphasis supplied)
[172]
Citing Hamilton, he also defines a constitution along the lines of the natural law
theory as a law for the government, safeguarding (not creating) individual
rights, set down in writing. (emphasis supplied) This view is accepted by
Taada and Fernando who wrote that the constitution is a written instrument
organizing the government, distributing its powers and safeguarding the
rights of the people. Chief Justice Fernando also quoted Schwartz that a
constitution is seen as an organic instrument, under which governmental
powers are both conferred and circumscribed. Such stress upon both grant
and limitation of authority is fundamental in American theory. The office
and purpose of the constitution is to shape and fix the limits of governmental
activity. Malcolm and Laurel define it according to Justice Millers definition in
his opus on the American Constitution published in 1893 as the written
instrument by which the fundamental powers of government are established,
limited and defined, and by which those powers are distributed among the
several departments for their safe and useful exercise for the benefit of the
body politic. The constitution exists to assure that in the governments
discharge of its functions, the dignity that is the birthright of every human being
is duly safeguarded.
[173]
[174]
[175]
[176]
[177]
[178]
Clearly then, at the core of constitutionalism is a strong concern for
individual rights as in the modern period natural law theories. Justice Laurel
as delegate to the 1934 Constitutional Convention declared in a major address
before the Convention:
[179]
There is no constitution, worthy of the name, without a bill or declaration of rights. (It
is) the palladium of the peoples liberties and immunities, so that their persons, homes,
their peace, their livelihood, their happiness and their freedom may be safe and secure
from an ambitious ruler, an envious neighbor, or a grasping state.
[180]
As Chairman of the Committee on the Declaration of Rights, he stated:
The history of the world is the history of man and his arduous struggle for liberty. . . .
It is the history of those brave and able souls who, in the ages that are past, have
labored, fought and bled that the government of the lash - that symbol of slavery and
despotism - might endure no more. It is the history of those great self-sacrificing men
who lived and suffered in an age of cruelty, pain and desolation, so that every man
might stand, under the protection of great rights and privileges, the equal of
every other man.
[181]
Being substantially a copy of the American Bill of Rights, the history of our
Bill of Rights dates back to the roots of the American Bill of Rights. The latter is
a charter of the individuals liberties and a limitation upon the power of the
state which traces its roots to the English Magna Carta of 1215, a first in
English history for a written instrument to be secured from a sovereign ruler by
the bulk of the politically articulate community that intended to lay down binding
rules of law that the ruler himself may not violate. In Magna Carta is to be found
the germ of the root principle that there are fundamental individual rights
that the State -sovereign though it is - may not infringe. (emphasis
supplied)
[182]
[183]
In Sales v. Sandiganbayan, et al., quoting Allado v. Diokno, this
Court ruled that the Bill of Rights guarantees the preservation of our natural
rights, viz:
[184]
[185]
The purpose of the Bill of Rights is to protect the people against arbitrary and
discriminatory use of political power. This bundle of rights guarantees
the preservation of our natural rights which include personal liberty and security
against invasion by the government or any of its branches or
instrumentalities. (emphasis supplied)
[186]
We need, however, to fine tune this pronouncement of the Court, considering
that certain rights in our Bill of Rights, for example habeas corpus, have been
identified not as a natural right, but a civil right created by law. Likewise, the
right against unreasonable searches and seizures has been identified
in Simon as a civil right, without expounding however what civil right meant
therein - whether a natural right existing before the constitution and protected
by it, thus acquiring the status of a civil right; or a right created merely by law
and non-existent in the absence of law. To understand the nature of the right
against unreasonable search and seizure and the corollary right to exclusion of
evidence obtained therefrom, we turn a heedful eye on the history, concept and
purpose of these guarantees.
IV. History of the Guarantee against
Unreasonable Search and Seizure and the
Right to Exclusion of Illegally Seized Evidence
in the United States and in the Philippines
The origin of the guarantee against unreasonable search and seizure in the
Philippine constitutions can be traced back to hundreds of years ago in a land
distant from the Philippines.Needless to say, the right is well-entrenched in
history.
The power to search in England was first used as an instrument to oppress
objectionable publications. Not too long after the printing press was
developed, seditious and libelous publications became a concern of the Crown,
and a broad search and seizure power developed to suppress these
publications. General warrants were regularly issued that gave all kinds of
people the power to enter and seize at their discretion under the authority of the
Crown to enforce publication licensing statutes. In 1634, the ultimate
ignominy in the use of general warrants came when the early great illuminary
of the common law, and most influential of the Crowns opponents, Sir
Edward Coke, while on his death bed, was subjected to a ransacking search
and the manuscripts of his Institutes were seized and carried away as seditious
and libelous publications.
[187]
[188]
[189]
[190]
[191]
[192]
The power to issue general warrants and seize publications grew. They
were also used to search for and seize smuggled goods. The developing
common law tried to impose limits on the broad power to search to no avail. In
his History of the Pleas of Crown, Chief Justice Hale stated unequivocally that
general warrants were void and that warrants must be used on probable cause
and with particularity. Member of Parliament, William Pitt, made his
memorable and oft-quoted speech against the unrestrained power to search:
[193]
[194]
The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It
may be frail - its roof may shake - the wind may blow through it - the storm may enter
- the rain may enter; but the King of England may not enter; all his force dares not
cross the threshold of the ruined tenement.
[195]
Nevertheless, legislation authorizing general warrants continued to be
passed.
[196]
In the 16th century, writs of assistance, called as such because they
commanded all officers of the Crown to participate in their execution, were
also common. These writs authorized searches and seizures for enforcement
of import duty laws. The same powers and authorities and the like assistance
that officials had in England were given to American customs officers when
parliament extended the customs laws to the colonies. The abuse in the writs
of assistance was not only that they were general, but they were not returnable
and once issued, lasted six months past the life of the sovereign.
[197]
[198]
[199]
These writs caused profound resentment in the colonies. They were
predominantly used in Massachusetts, the largest port in the colonies and the
seat of the American revolution. When the writs expired six months after the
death of George II in October 1760, sixty-three Boston merchants who were
opposed to the writs retained James Otis, Jr. to petition the Superior Court for
[200]
[201]
[202]
a hearing on the question of whether new writs should be issued. Otis used
the opportunity to denounce Englands whole policy to the colonies and on
general warrants. He pronounced the writs of assistance as the worst
instrument of arbitrary power, the most destructive of English liberty and the
fundamental principles of law, that ever was found in an English law book since
they placed the liberty of every man in the hands of every petty officer. Otis
was a visionary and apparently made the first argument for judicial review and
nullifying of a statute exceeding the legislatures power under the Constitution
and natural law. This famous debate in February 1761 in Boston was perhaps
the most prominent event which inaugurated the resistance of the colonies to
the oppressions of the mother country. Then and there, said John Adams, then
and there was the first scene of the first act of opposition to the arbitrary claims
of Great Britain. Then and there the child Independence was born. But the
Superior Court nevertheless held that the writs could be issued.
[203]
[204]
[205]
[206]
[207]
[208]
Once the customs officials had the writs, however, they had great difficulty
enforcing the customs laws owing to rampant smuggling and mob resistance
from the citizenry. The revolution had begun. The Declaration of
Independence followed. The use of general warrants and writs of assistance in
enforcing customs and tax laws was one of the causes of the American
Revolution.
[209]
[210]
Back in England, shortly after the Boston debate, John Wilkes, a member
of Parliament, anonymously published the North Briton, a series of pamphlets
criticizing the policies of the British government. In 1763, one pamphlet was
very bold in denouncing the government. Thus, the Secretary of the State
issued a general warrant to search for the authors, printers, and publishers of
[the] seditious and treasonable paper. Pursuant to the warrant, Wilkes house
was searched and his papers were indiscriminately seized. He sued the
perpetrators and obtained a judgment for damages. The warrant was
pronounced illegal as totally subversive of the liberty and person and property
of every man in this kingdom.
[211]
[212]
[213]
Seeing Wilkes success, John Entick filed an action for trespass for the search
and seizure of his papers under a warrant issued earlier than Wilkes. This became
the case of Entick v. Carrington, considered a landmark of the law of search
and seizure and called a familiar monument of English freedom. Lord Camden,
the judge, held that the general warrant for Enticks papers was invalid. Having
described the power claimed by the Secretary of the State for issuing general
search warrants, and the manner in which they were executed, Lord Camden
spoke these immortalized words, viz:
[214]
[215]
Such is the power and therefore one would naturally expect that the law to warrant it
should be clear in proportion as the power is exorbitant. If it is law, it will be found in
our books; if it is not to be found there, it is not law.
The great end for which men entered into society was to secure their
property. That right is preserved sacred and incommunicable in all instances where it
has not been taken away or abridged by some public law for the good of the
whole. The cases where this right of property is set aside by positive law are
various. Distresses, executions, forfeitures, taxes, etc., are all of this description,
wherein every man by common consent gives up that right for the sake of justice and
the general good. By the laws of England, every invasion of private property, be it
ever so minute, is a trespass. No man can set his foot upon my ground without my
license but he is liable to an action though the damage be nothing; which is proved by
every declaration in trespass where the defendant is called upon to answer for bruising
the grass and even treading upon the soil. If he admits the fact, he is bound to show
by way of justification that some positive law has justified or excused him. . . If
no such excuse can be found or produced, the silence of the books is an authority
against the defendant and the plaintiff must have judgment. . . (emphasis
supplied)
[216]
The experience of the colonies on the writs of assistance which spurred the
Boston debate and the Entick case which was a monument of freedom that
every American statesman knew during the revolutionary and formative period
of America, could be confidently asserted to have been in the minds of those
who framed the Fourth Amendment to the Constitution, and were considered
as sufficiently explanatory of what was meant by unreasonable searches and
seizures.
[217]
The American experience with the writs of assistance and the Entick
case were considered by the United States Supreme Court in the first major
case to discuss the scope of the Fourth Amendment right against unreasonable
search and seizure in the 1885 case of Boyd v. United States, supra, where
the court ruled, viz:
The principles laid down in this opinion (Entick v. Carrington, supra) affect the very
essence of constitutional liberty and security. They reach farther than the concrete
form of the case then before the court, with its adventitious circumstances; they apply
to all invasions, on the part of the Government and its employees, of the sanctity
of a mans home and the privacies of life. It is not the breaking of his doors and
the rummaging of his drawers that constitutes the essence of the offense; but it is
the invasion of his indefeasible right of personal security, personal liberty and
private property,where that right has never been forfeited by his conviction of some
public offense; it is the invasion of this sacred right which underlies and constitutes
the essence of Lord Camdens judgment. (emphasis supplied)
[218]
In another landmark case of 1914, Weeks v. United States, the Court,
citing Adams v. New York, reiterated that the Fourth Amendment was
intended to secure the citizen in person and property against the unlawful
invasion of the sanctity of his home by officers of the law, acting under
legislative or judicial sanction.
[219]
[220]
With this genesis of the right against unreasonable searches and seizures
and the jurisprudence that had built around it, the Fourth Amendment guarantee
was extended by the United States to the Filipinos in succinct terms in President
McKinleys Instruction of April 7, 1900, viz:
. . . that the right to be secure against unreasonable searches and seizures shall not be
violated.
[221]
This provision in the Instruction was re-enacted in Section 5 of the
Philippine Bill of 1902, this time with a provision on warrants, viz:
That the right to be secure against unreasonable searches and seizures shall not be
violated.
xxxxxxxxx
That no warrant shall issue except upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched and the person or
things to be seized.
[222]
The above provisions were reproduced verbatim in the Jones Law of 1916.
Then came the 1935 Constitution which provides in Article IV, Section
1(3), viz:
Section 1(3). The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures shall not be violated, and no
warrants shall issue but upon probable cause, to be determined by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched, and the persons or
things to be seized.
Initially, the Constitutional Conventions committee on bill of rights proposed
an exact copy of the Fourth Amendment of the United States Constitution in
their draft, viz:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no warrants
shall issue but upon probable cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.
[223]
During the debates of the Convention, however, Delegate Vicente Francisco
proposed to amend the provision by inserting the phrase to be determined by
the judge after examination under oath or affirmation of the complainant and
the witness he may produce in lieu of supported by oath or affirmation. His
proposal was based on Section 98 of General Order No. 58 or the Code
of Criminal Procedure then in force in the Philippines which provided that: (t)he
judge or justice of the peace must, before issuing the warrant, examine on oath
or affirmation the complainant and any witness he may produce and take their
deposition in writing. The amendment was accepted as it was a remedy
against the evils pointed out in the debates, brought about by the issuance of
warrants, many of which were in blank, upon mere affidavits on facts which
were generally found afterwards to be false.
[224]
[225]
When the Convention patterned the 1935 Constitutions guarantee against
unreasonable searches and seizures after the Fourth Amendment, the
Convention made specific reference to the Boyd case and traced the history of
the guarantee against unreasonable search and seizure back to the issuance
of general warrants and writs of assistance in England and the American
colonies. From the Boyd case, it may be derived that our own Constitutional
guarantee against unreasonable searches and seizures, which is an almost
exact copy of the Fourth Amendment, seeks to protect rights to security of
person and property as well as privacy in ones home and possessions.
[226]
Almost 40 years after the ratification of the 1935 Constitution, the provision
on the right against unreasonable searches and seizures was amended in
Article IV, Section 3 of the 1973 Constitution, viz:
Sec. 3. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall not be violated, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined by the judge, or such other responsible
officer as may be authorized by law, after examination under oath or affirmation of
the complainant and the witnesses he may produce, and particularly describing the
place to be searched, and the persons or things to be seized.
Noticeably, there were three modifications of the 1935 counterpart, namely: (1)
the clause was made applicable to searches and seizures of whatever nature
and for any purpose; (2) the provision on warrants was expressly made
applicable to both search warrant or warrant of arrest; and (3) probable cause
was made determinable not only by a judge, but also by such other officer as
may be authorized by law. But the concept and purpose of the right remained
substantially the same.
[227]
As a corollary to the above provision on searches and seizures, the
exclusionary rule made its maiden appearance in Article IV, Section 4(2) of the
Constitution, viz:
Section 4 (1). The privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public safety and order require
otherwise.
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
That evidence obtained in violation of the guarantee against unreasonable
searches and seizures is inadmissible was an adoption of the Courts ruling in
the 1967 case of Stonehill v. Diokno.
[228]
Sections 3 and 4 of the 1973 Constitution were adopted in toto in Article I,
Section 1 of the Freedom Constitution which took effect on March 25, 1986, viz:
Section 1. The provision of . . . ARTICLE IV (Bill of Rights) . . . of the 1973
Constitution, as amended, remain in force and effect and are hereby adopted in toto as
part of this Provisional Constitution.
[229]
Thereafter, pursuant to the Freedom Constitution, the 1987 Constitution
was drafted and ratified on February 2, 1987. Sections 2 and 3, Article III thereof
provide:
Section 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by a judge after examination
under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.
x x x x x x x xx
Section 3 (1). The privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public safety and order requires
otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
The significant modification of Section 2 is that probable cause may be
determined only by a judge and no longer by such other responsible officer as
may be authorized by law. This was a reversion to the counterpart provision in
the 1935 Constitution.
Parenthetically, in the international arena, the UDHR provides a similar
protection in Article 12, viz:
No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the right
to the protection of the law against such interference or attacks.
The ICCPR similarly protects this human right in Article 17, viz:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to attacks upon his honour and reputation.
2. Everyone has the right to protection of the law against such interference or attacks.
In the United States, jurisprudence on the Fourth Amendment continued to
grow from the Boyd case. The United States Supreme Court has held that the
focal concern of the Fourth Amendment is to protect the individual from arbitrary
and oppressive official conduct. It also protects the privacies of life and the
sanctity of the person from such interference. In later cases, there has been
a shift in focus: it has been held that the principal purpose of the guarantee is
the protection of privacy rather than property, [f]or the Fourth Amendment
protects people, not places. The tests that have more recently been
formulated in interpeting the provision focus on privacy rather than intrusion of
property such as the constitutionally protected area test in the 1961 case
of Silverman v. United States and the reasonable expectation of privacy
standard in Katz v. United States which held that the privacy of
communication in a public telephone booth comes under the protection of the
Fourth Amendment.
[230]
[231]
[232]
[233]
[234]
Despite the shift in focus of the Fourth Amendment in American jurisdiction,
the essence of this right in Philippine jurisdiction has consistently been
understood as respect for ones personality, property, home, and privacy. Chief
Justice Fernando explains, viz:
It is deference to ones personality that lies at the core of this right, but it could be
also looked upon as a recognition of a constitutionally protected area, primarily
ones home, but not necessarily excluding an office or a hotel room. (Cf. Hoffa v.
United States, 385 US 293 [1966]) What is sought to be regarded is a mans
prerogative to choose who is allowed entry in his residence, for him to retreat
from the cares and pressures, even at times the oppressiveness of the outside
world, where he can truly be himself with his family. In that haven of refuge, his
individuality can assert itself not only in the choice of who shall be welcome but
likewise in the objects he wants around him. There the state, however powerful,
does not as such have access except under the circumstances noted, for in the
traditional formulation, his house, however humble, is his castle. (Cf. Cooley: Near in
importance to exemption from any arbitrary control of the person is that maxim of the
common law which secures to the citizen immunity in his home against the prying
eyes of the government, and protection in person, property, and papers against even
the process of the law, except in specified cases. The maxim that every mans house is
his castle, is made part of our constitutional law in the clauses prohibiting
unreasonable searches and seizures, and has always been looked upon as of high value
to the citizen. (1 Constitutional Limitations, pp. 610-611 [1927]) In the language of
Justice Laurel, this provision is intended to bulwark individual security, home,
and legitimate possessions (Rodriquez v. Vollamiel, 65 Phil. 230, 239 (1937). Laurel
con.) Thus is protected his personal privacy and dignity against unwarranted
intrusion by the State. There is to be no invasion on the part of the government
and its employees of the sanctity of a mans home and the privacies of life. (Boyd
v. United States, 116 US 616, 630 [1886]) (emphasis supplied)
[235]
As early as 1904, the Court has affirmed the sanctity and privacy of the
home in United States v. Arceo, viz:
[236]
The inviolability of the home is one of the most fundamental of all the individual
rights declared and recognized in the political codes of civilized nations. No one can
enter into the home of another without the consent of its owners or occupants.
The privacy of the home - the place of abode, the place where man with his
family may dwell in peace and enjoy the companionship of his wife and children
unmolested by anyone, even the king, except in rare cases - has always been
regarded by civilized nations as one of the most sacred personal rights to whom
men are entitled. Both the common and the civil law guaranteed to man the right to
absolute protection to the privacy of his home. The king was powerful; he was clothed
with majesty; his will was the law, but, with few exceptions, the humblest citizen or
subject might shut the door of his humble cottage in the face of the monarch and
defend his intrusion into that privacy which was regarded as sacred as any of the
kingly prerogatives. . .
A mans house is his castle, has become a maxim among the civilized peoples of the
earth. His protection therein has become a matter of constitutional protection in
England, America, and Spain, as well as in other countries.
xxxxxxxxx
So jealously did the people of England regard this right to enjoy, unmolested, the
privacy of their houses, that they might even take the life of the unlawful intruder, if it
be nighttime. This was also the sentiment of the Romans expressed by Tully: Quid
enim sanctius quid omni religione munitius, quam domus uniuscu jusque
civium. (emphasis supplied)
[237]
The Court reiterated this in the 1911 case of United States v. De Los
Reyes, et al., to demonstrate the uncompromising regard placed upon the
privacy of the home that cannot be violated by unreasonable searches and
seizures, viz:
[238]
In the case of McClurg vs. Brenton (123 Iowa, 368), the court, speaking of the right of
an officer to enter a private house to search for the stolen goods, said:
The right of the citizen to occupy and enjoy his home, however mean or humble, free
from arbitrary invasion and search, has for centuries been protected with the most
solicitous care by every court in the English-speaking world, from Magna Charta
down to the present, and is embodied in every bill of rights defining the limits of
governmental power in our own republic.
The mere fact that a man is an officer, whether of high or low degree, gives him no
more right than is possessed by the ordinary private citizen to break in upon
the privacy of a home and subject its occupants to the indignity of a search for the
evidence of crime, without a legal warrant procured for that purpose. No amount of
incriminating evidence, whatever its source, will supply the place of such warrant. At
the closed door of the home, be it palace or hovel, even blood-hounds must wait till
the law, by authoritative process, bids it open. . . (emphasis supplied)
[239]
It is not only respect for personality, privacy and property, but to the very dignity
of the human being that lies at the heart of the provision.
There is also public interest involved in the guarantee against unreasonable
search and seizure. The respect that government accords its people helps it
elicit allegiance and loyalty of its citizens. Chief Justice Fernando writes about
the right against unreasonable search and seizure as well as to privacy of
communication in this wise:
These rights, on their face, impart meaning and vitality to that liberty which in a
constitutional regime is a mans birth-right. There is the recognition of the area of
privacy normally beyond the power of government to intrude. Full and
unimpaired respect to that extent is accorded his personality. He is free from the
prying eyes of public officials. He is let alone, a prerogative even more valued when
the agencies of publicity manifest less and less diffidence in impertinent and
unwelcome inquiry into ones person, his home, wherever he may be minded to stay,
his possessions, his communication. Moreover, in addition to the individual
interest, there is a public interest that is likewise served by these constitutional
safeguards. They make it easier for state authority to enlist the loyalty and
allegiance of its citizens, with the unimpaired deference to ones dignity and
standing as a human being, not only to his person as such but to things that may
be considered necessary appurtenances to a decent existence. A government that
thus recognizes such limits and is careful not to trespass on what is the domain subject
to his sole control is likely to prove more stable and enduring. (emphasis supplied)
[240]
In the 1967 case of Stonehill, et al. v. Diokno, this Court affirmed the
sanctity of the home and the privacy of communication and
correspondence, viz:
[241]
To uphold the validity of the warrants in question would be to wipe out
completely one of the most fundamental rights guaranteed in our Constitution,
for it would place the sanctity of the domicile and the privacy of communication
and correspondence at the mercy of the whims, caprice or passion of peace
officers. This is precisely the evil sought to be remedied by the constitutional
provision above quoted - to outlaw the so-called general warrants. It is not
difficult to imagine what would happen, in times of keen political strife, when the
party in power feels that the minority is likely to wrest it, even though by legal
means. (emphasis supplied)
[242]
Even after the 1961 Silverman and 1967 Katz cases in the United States,
which emphasized protection of privacy rather than property as the principal
purpose of the Fourth Amendment, this Court declared the avowed purposes
of the guarantee in the 1981 case of People v. CFI of Rizal, Branch IX,
Quezon City, viz:
[243]
The purpose of the constitutional guarantee against unreasonable searches and
seizures is to prevent violations of private security in person and property and
unlawful invasion of the security of the home by officers of the law acting under
legislative or judicial sanction and to give remedy against such usurpation when
attempted. (Adams v. New York, 192 U.S. 858; Alvero v. Dizon, 76 Phil. 637
[1946]). The right to privacy is an essential condition to the dignity and
happiness and to the peace and security of every individual, whether it be of
home or of persons and correspondence. (Taada and Carreon, Political Law of the
Philippines, Vol. 2, 139 [1962]). The constitutional inviolability of this great
fundamental right against unreasonable searches and seizures must be deemed
absolute as nothing is closer to a mans soul than the serenity of his privacy and
the assurance of his personal security. Any interference allowable can only be for
the best causes and reasons. (emphasis supplied)
[244]
Even if it were conceded that privacy and not property is the focus of the
guarantee as shown by the growing American jurisprudence, this Court has
upheld the right to privacy and its central place in a limited government such as
the Philippines, viz:
The right to privacy as such is accorded recognition independently of its identification
with liberty; in itself, it is fully deserving of constitutional protection. The language of
Prof. Emerson is particularly apt: The concept of limited government has always
included the idea that governmental powers stop short of certain intrusions into
the personal life of the citizen. This is indeed one of the basic distinctions between
absolute and limited government. Ultimate and pervasive control of the individual,
in all aspects of his life, is the hallmark of the absolute state. In contrast, a system of
limited government safeguards a private sector, which belongs to the individual,
firmly distinguishing it from the public sector, which the state can
control. Protection of this private sector - protection, in other words, of the
dignity and integrity of the individual- has become increasingly important as
modern society has developed. All the forces of technological age - industrialization,
urbanization, and organization - operate to narrow the area of privacy and facilitate
intrusion to it. In modern times, the capacity to maintain and support this enclave of
private life marks the difference between a democratic and a totalitarian
society. (emphasis supplied)
[245]
The right to privacy discussed in Justice Douglas dissent in the Hayden
case is illuminating. We quote it at length, viz:
Judge Learned Hand stated a part of the philosophy of the Fourth Amendment in
United States v. Poller, 43 F2d 911, 914: [I]t is only fair to observe that the real evil
aimed at by the Fourth Amendment is the search itself, that invasion of a mans
privacy which consists in rummaging about among his effects to secure evidence
against him. If the search is permitted at all, perhaps it does not make so much
difference what is taken away, since the officers will ordinarily not be interested in
what does not incriminate, and there can be no sound policy in protecting what does.
xxxxxxxxx
The constitutional philosophy is, I think, clear. The personal effects and possessions
of the individual (all contraband and the like excepted) are sacrosanct from
prying eyes, from the long arm of the law, from any rummaging by
police. Privacy involves the choice of the individual to disclose or to reveal what
he believes, what he thinks, what he possesses. The article may be nondescript work
of art, a manuscript of a book, a personal account book, a diary, invoices, personal
clothing, jewelry, or whatnot. Those who wrote the Bill of Rights believed that
every individual needs both to communicate with others and to keep his affairs to
himself. That dual aspect of privacy means that the individual should have the
freedom to select for himself the time and circumstances when he will share his
secrets with others and decide the extent of the sharing (footnote omitted). This is
his prerogative not the States. The Framers, who were as knowledgeable as we,
knew what police surveillance meant and how the practice of rummaging through
ones personal effects could destroy freedom.
xxxxxxxxx
I would . . . leave with the individual the choice of opening his private effects
(apart from contraband and the like) to the police and keeping their contents as
secret and their integrity inviolate.The existence of that choice is the very essence
of the right of privacy. (emphasis supplied)
[246]
Thus, in Griswold v. Connecticut, the United States Supreme Court
upheld the right to marital privacy and ruled that lawmakers could not make the
use of contraceptives a crime and sanction the search of marital bedrooms, viz:
[247]
Would we allow the police to search the sacred precincts of marital bedrooms for
telltale signs of the use of contraceptives? The very idea is repulsive to the notions of
privacy surrounding the marriage relationship.
We deal with a right of privacy older than the Bill of Rights older than our
political parties, older than our school system. Marriage is a coming together for
better or for worse, hopefully enduring, and intimate to the degree of being sacred. It
is an association that promotes a way of life, not causes; a harmony in living, not
political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an
association for as noble a purpose as any involved in our prior decisions. (emphasis
supplied)
[248]
In relation to the right against unreasonable searches and seizures, private
respondent Dimaano likewise claims a right to the exclusionary rule, i.e., that
evidence obtained from an unreasonable search cannot be used in evidence
against her. To determine whether this right is available to her, we again
examine the history, concept, and purpose of this right in both the American
and Philippine jurisdictions.
The exclusionary rule has had an uneven history in both the United States
and Philippine jurisdictions. In common law, the illegal seizure of evidence did
not affect its admissibility because of the view that physical evidence was the
same however it was obtained. As distinguished from a coerced confession, the
illegal seizure did not impeach the authenticity or reliability of physical
evidence. This view prevailed in American jurisdiction until the Supreme Court
ruled in the 1914 Weeks case that evidence obtained in violation of the Fourth
Amendment was inadmissible in federal court as it amounted to theft by agents
of the government. This came to be known as the exclusionary rule and was
believed to deter federal law enforcers from violating the Fourth Amendment. In
1949,
the
Fourth Amendment was incorporated into the Due Process Clause under the
Fourteenth Amendment and made applicablein the state system in Wolf v.
Colorado, but the Court rejected to incorporate the exclusionary rule. At the
time Wolf was decided, 17 states followed the Weeks doctrine while 30 states
did not. The Court reasoned:
[249]
[250]
[251]
We cannot brush aside the experience of States which deem the incidence of such
conduct by the police too slight to call for a deterrent remedy not by way of
disciplinary measures but by overriding the relevant rules of evidence. There are,
moreover, reasons for excluding evidence unreasonably obtained by the federal police
which are less compelling in the case of police under State or local authority. The
public opinion of a community can far more effectively be exerted against oppressive
conduct on the part of police directly responsible to the community itself than can
local opinion, sporadically aroused, be brought to bear upon remote authority
pervasively exerted throughout the country.
[252]
This difference in treatment on the federal and state level of evidence
obtained illegally resulted in the silver platter doctrine. State law enforcement
agents would provide federal officers with illegally seized evidence, which was
then admissible in federal court because, as with illegally seized evidence by
private citizens, federal officers were not implicated in obtaining it.Thus, it was
said that state law enforcers served up the evidence in federal cases in silver
platter. This pernicious practice was stopped with the United States Supreme
Courts 1960 decision, Elkins v. United States. Twelve years after Wolf, the
[253]
United States Supreme Court reversed Wolf and incorporated the exclusionary
rule in the state system in Mapp v. Ohio because other means of controlling
illegal police behavior had failed. We quote at length the Mapp ruling as it had
a significant influence in the exclusionary rule in Philippine jurisdiction, viz:
[254]
[255]
. . . Today we once again examine the Wolfs constitutional documentation of the right
of privacy free from unreasonable state intrusion, and after its dozen years on our
books, are led by it to close the only courtroom door remaining open to evidence
secured by official lawlessness in flagrant abuse of that basic right, reserved to all
persons as a specific guarantee against that very same unlawful conduct. . .
Since the Fourth Amendments right to privacy has been declared enforceable against
the States through the Due Process Clause of the Fourteenth, it is enforceable against
them by the same sanction of exclusion as it is used against the Federal
Government. Were it otherwise, then just as without the Weeks rule the assurance
against unreasonable federal searches and seizures would be a form of words,
valueless and undeserving of mention in a perpetual charter of inestimable human
liberties, so too, without that rule the freedom from state invasions of privacy
would be so ephemeral and so neatly severed from its conceptual nexus with the
freedom from all brutish means of coercing evidence as not to permit this Courts
high regard as freedom implicit in the concept of ordered liberty. At that time that
the Court held in Wolf that the amendment was applicable to the States through the
Due Process Clause, the cases of this court as we have seen, had steadfastly held that
as to federal officers the Fourth Amendment included the exclusion of the evidence
seized in violation of its provisions. Even Wolf stoutly adhered to that
proposition. The right to privacy, when conceded operatively enforceable against the
States, was not susceptible of destruction by avulsion of the sanction upon which its
protection and enjoyment had always been deemed dependent under the Boyd, Weeks
and Silverthorne Cases.Therefore, in extending the substantive protections of due
process to all constitutionally unreasonable searches - state or federal - it was
logically and constitutionally necessary that the exclusion doctrine - an essential
part of the right to privacy - be also insisted upon as an essential ingredient of
the right newly recognized by the Wolf case. In short, the admission of the new
constitutional right by Wolf could not consistently tolerate denial of its most
important constitutional privilege, namely, the exclusion of the evidence which
an accused had been forced to give by reason of the unlawful seizure. To hold
otherwise is to grant the right but in reality to withhold its privilege and
enjoyment. Only last year the Court itself recognized that the purpose of the
exclusionary rule is to deter - to compel respect for the constitutional guaranty in
the only available way - by removing the incentive to disregard it. (Elkins v.
United States, 364 US at 217)
xxxxxxxxx
The ignoble shortcut to conviction left open to the State tends to destroy the entire
system of constitutional restraints on which the liberties of the people rest. (Cf.
Marcus v. Search Warrant of Property, 6 L ed 2d post, p. 1127) Having once
recognized that the right to privacy embodied in the Fourth Amendment is enforceable
against the States, and that the right to be secure against rude invasions of privacy by
state officers is, therefore constitutional in origin, we can no longer permit that right to
remain an empty promise. Because it is enforceable in the same manner and to like
effect as other basic rights secured by its Due Process Clause, we can no longer
permit it to be revocable at the whim of any police officer who, in the name of
law enforcement itself, chooses to suspend its enjoyment. Our decision, founded
on reason and truth, gives to the individual no more than that which the
Constitution guarantees him, to the police officer no less than that to which
honest law enforcement is entitled, and to the courts, that judicial integrity so
necessary in the true administration of justice. (emphasis supplied)
[256]
It is said that the exclusionary rule has three purposes. The major and most
often invoked is the deterrence of unreasonable searches and seizures as
stated in Elkins v. United States and quoted in Mapp: (t)he rule is calculated
to prevent, not repair. Its purpose is to deter to compel respect for constitutional
guaranty in the only effective available way by removing the incentive to
disregard it. Second is the imperative of judicial integrity, i.e., that the courts
do not become accomplices in the willful disobedience of a Constitution they
are sworn to uphold . . . by permitting unhindered governmental use of the fruits
of such invasions. . . A ruling admitting evidence in a criminal trial . . . has the
necessary effect of legitimizing the conduct which produced the evidence, while
an application of the exclusionary rule withholds the constitutional
imprimatur. Third is the more recent purpose pronounced by some members
of the United States Supreme Court which is that of assuring the people all
potential victims of unlawful government conduct that the government would not
profit from its lawless behavior, thus minimizing the risk of seriously
undermining popular trust in government. The focus of concern here is not
the police but the public. This third purpose is implicit in the Mapp declaration
that no man is to be convicted on unconstitutional evidence.
[257]
[258]
[259]
[260]
[261]
In Philippine jurisdiction, the Court has likewise swung from one position to
the other on the exclusionary rule. In the 1920 case of Uy Kheytin v.
Villareal, the Court citing Boyd, ruled that seizure or compulsory production
of a mans private papers to be used against him was tantamount to selfincrimination and was therefore unreasonable search and seizure. This was a
proscription against fishing expeditions. The Court restrained the prosecution
[262]
from using the books as evidence. Five years later or in 1925, we held
in People v. Carlos that although the Boyd and Silverthorne Lumber Co.
and Silverthorne v. United States cases are authorities for the doctrine that
documents obtained by illegal searches were inadmissible in evidence in
criminal cases, Weeks modified this doctrine by adding that the illegality of the
search and seizure should have initially been directly litigated and established
by a pre-trial motion for the return of the things seized. As this condition was
not met, the illegality of the seizure was not deemed an obstacle to
admissibility. The subject evidence was nevertheless excluded, however, for
being hearsay. Thereafter, in 1932, the Court did not uphold the defense of selfincrimination when fraudulent books, invoices and records that had been seized
were presented in evidence in People v. Rubio. The Court gave three
reasons: (1) the public has an interest in the proper regulation of the partys
books; (2) the books belonged to a corporation of which the party was merely
a manager; and (3) the warrants were not issued to fish for evidence but to
seize instruments used in the violation of [internal revenue] laws and to further
prevent the perpetration of fraud.
[263]
[264]
[265]
[266]
The exclusionary rule applied in Uy Kheytin was reaffirmed seventeen
years thence in the 1937 case of Alvarez v. Court of First Instance decided
under the 1935 Constitution.The Court ruled that the seizure of books and
documents for the purpose of using them as evidence in a criminal case against
the possessor thereof is unconstitutional because it makes the warrant
unreasonable and the presentation of evidence offensive of the provision
against self-incrimination. At the close of the Second World War, however, the
Court, in Alvero v. Dizon, again admitted in evidence documents seized by
United States military officers without a search warrant in a prosecution by the
Philippine Government for treason. The Court reasoned that this was in accord
with the Laws and Customs of War and that the seizure was incidental to an
arrest and thus legal. The issue of self-incrimination was not addressed at all
and instead, the Court pronounced that even if the seizure had been illegal, the
evidence would nevertheless be admissible following jurisprudence in the
United States that evidence illegally obtained by state officers or private
persons may be used by federal officers.
[267]
[268]
[269]
Then came Moncado v. Peoples Court in 1948. The Court made a
categorical declaration that it is established doctrine in the Philippines that the
admissibility of evidence is not affected by the illegality of the means used for
obtaining it. It condemned the pernicious influence of Boyd and totally rejected
the doctrine in Weeks as subversive of evidentiary rules in Philippine
jurisdiction. The ponencia declared that the prosecution of those guilty of
violating the right against unreasonable searches and seizures was adequate
[270]
protection for the people.Thus it became settled jurisprudence that illegally
obtained evidence was admissible if found to be relevant to the case until the
1967 landmark decision of Stonehill v. Diokno which overturned
the Moncado rule. The Court held in Stonehill, viz:
[271]
[272]
. . . Upon mature deliberation, however, we are unanimously of the opinion that the
position taken in the Moncado case must be abandoned. Said position was in line with
the American common law rule, that the criminal should not be allowed to go free
merely because the constable has blundered, (People v. Defore, 140 NE 585) upon the
theory that the constitutional prohibition against unreasonable searches and seizures is
protected by means other than the exclusion of evidence unlawfully obtained (Wolf v.
Colorado, 93 L.Ed. 1782), such as common-law action for damages against the
searching officer, against the party who procured the issuance of the search warrant
and against those assisting in the execution of an illegal search, their criminal
punishment, resistance, without liability to an unlawful seizure, and such other legal
remedies as may be provided by other laws.
However, most common law jurisdictions have already given up this approach and
eventually adopted the exclusionary rule, realizing that this is the only practical means
of enforcing the constitutional injunction against unreasonable searches and
seizures.
[273]
The Court then quoted the portion of the Mapp case which we have quoted at
length above in affirming that the exclusionary rule is part and parcel of the
right against unreasonable searches and seizures. The Stonehill
ruling was incorporated in Article 4, Section 4(2) of the 1973 Constitution and
carried over to Article 3, Section 3(2) of the 1987 Constitution.
V. Application of the Natural Law
Culled from History and Philosophy:
Are the Rights Against Unreasonable Search and Seizure
and to the Exclusion of Illegally Seized Evidence Natural Rights
which Private Respondent Dimaano Can Invoke?
In answering this question, Justice Goldbergs concurring opinion in
the Griswold case serves as a helpful guidepost to determine whether a right
is so fundamental that the people cannot be deprived of it without undermining
the tenets of civil society and government, viz:
In determining which rights are fundamental, judges are not left at large to decide
cases in light of their personal and private notions. Rather, they must look to the
traditions and [collective] conscience of our people to determine whether a principle is
so rooted [there] . . . as to be ranked as fundamental. (Snyder v. Com. of
Massachusetts, 291 U.S. 97, 105 (1934)). The inquiry is whether a right involved is of
such character that it cannot be denied without violating those fundamental principles
of liberty and justice which lie at the base of all our civil and political institutions. . . .
Powell v. State of Alabama, 287 U.S. 45, 67 (1932) (emphasis supplied)
[274]
In deciding a case, invoking natural law as solely a matter of the judges
personal preference, invites criticism that the decision is a performative
contradiction and thus self-defeating.Critics would point out that while the
decision invokes natural law that abhors arbitrariness, that same decision is
tainted with what it abhors as it stands on the judges subjective and arbitrary
choice of a school of legal thought. Just as one judge will fight tooth and nail to
defend the natural law philosophy, another judge will match his fervor in
defending a contrary philosophy he espouses. However, invoking natural law
because the history, tradition and moral fiber of a people indubitably show
adherence to it is an altogether different story, for ultimately, in our political and
legal tradition, the people are the source of all government authority, and the
courts are their creation. While it may be argued that the choice of a school of
legal thought is a matter of opinion, history is a fact against which one cannot
argue - and it would not be turning somersault with history to say that the
American Declaration of Independence and the consequent adoption of a
constitution stood on a modern natural law theory foundation as this is
universally taken for granted by writers on government. It is also well-settled
in Philippine history that the American system of government and constitution
were adopted by our 1935 Constitutional Convention as a model of our own
republican system of government and constitution. In the words of Claro M.
Recto, President of the Convention, the 1935 Constitution is frankly an imitation
of the American Constitution. Undeniably therefore, modern natural law theory,
specifically Lockes natural rights theory, was used by the Founding Fathers of
the American constitutional democracy and later also used by the
Filipinos. Although the 1935 Constitution was revised in 1973, minimal
modifications were introduced in the 1973 Constitution which was in force prior
to the EDSA Revolution. Therefore, it could confidently be asserted that the
spirit and letter of the 1935 Constitution, at least insofar as the system of
government and the Bill of Rights were concerned, still prevailed at the time of
the EDSA Revolution. Even the 1987 Constitution ratified less than a year from
the EDSA Revolution retained the basic provisions of the 1935 and 1973
Constitutions on the system of government and the Bill of Rights, with the
[275]
[276]
significant difference that it emphasized respect for and protection of human
rights and stressed that sovereignty resided in the people and all government
authority emanates from them.
Two facts are easily discernible from our constitutional history. First, the
Filipinos are a freedom-loving race with high regard for their fundamental and
natural rights. No amount of subjugation or suppression, by rulers with the same
color as the Filipinos skin or otherwise, could obliterate their longing and
aspiration to enjoy these rights. Without the peoples consent to submit their
natural rights to the ruler, these rights cannot forever be quelled, for like water
seeking its own course and level, they will find their place in the life of the
individual and of the nation; natural right, as part of nature, will take its own
course. Thus, the Filipinos fought for and demanded these rights from the
Spanish and American colonizers, and in fairly recent history, from an
authoritarian ruler. They wrote these rights in stone in every constitution they
crafted starting from the 1899 Malolos Constitution. Second, although Filipinos
have given democracy its own Filipino face, it is undeniable that our political
and legal institutions are American in origin. The Filipinos adopted the
republican form of government that the Americans introduced and the Bill of
Rights they extended to our islands, and were the keystones that kept the body
politic intact. These institutions sat well with the Filipinos who had long yearned
for participation in government and were jealous of their fundamental and
natural rights. Undergirding these institutions was the modern natural law
theory which stressed natural rights in free, independent and equal individuals
who banded together to form government for the protection of their natural
rights to life, liberty and property. The sole purpose of government is to
promote, protect and preserve these rights. And when government not only
defaults in its duty but itself violates the very rights it was established to protect,
it forfeits its authority to demand obedience of the governed and could be
replaced with one to which the people consent. The Filipino people exercised
this highest of rights in the EDSA Revolution of February 1986.
[277]
I will not endeavor to identify every natural right that the Filipinos fought for
in EDSA. The case at bar merely calls us to determine whether two particular
rights - the rights against unreasonable search and seizure and to the exclusion
of evidence obtained therefrom - have the force and effect of natural rights
which private respondent Dimaano can invoke against the government.
I shall first deal with the right against unreasonable search and seizure. On
February 25, 1986, the new president, Corazon Aquino, issued Proclamation
No. 1 where she declared that she and the vice president were taking power in
the name and by the will of the Filipino people and pledged to do justice to the
numerous victims of human rights violations. It is implicit from this pledge that
[278]
the new government recognized and respected human rights. Thus, at the time
of the search on March 3, 1986, it may be asserted that the government had
the duty, by its own pledge, to uphold human rights. This presidential issuance
was what came closest to a positive law guaranteeing human rights without
enumerating them. Nevertheless, even in the absence of a positive law granting
private respondent Dimaano the right against unreasonable search and seizure
at the time her house was raided, I respectfully submit that she can invoke her
natural right against unreasonable search and seizure.
The right against unreasonable search and seizure is a core right implicit in
the natural right to life, liberty and property. Our well-settled jurisprudence that
the right against unreasonable search and seizure protects the peoples rights
to security of person and property, to the sanctity of the home, and to privacy is
a recognition of this proposition. The life to which each person has a right is not
a life lived in fear that his person and property may be unreasonably violated by
a powerful ruler. Rather, it is a life lived with the assurance that the government
he established and consented to, will protect the security of his person and
property. The ideal of security in life and property dates back even earlier than
the modern philosophers and the American and French revolutions, but
pervades the whole history of man. It touches every aspect of mans existence,
thus it has been described, viz:
The right to personal security emanates in a persons legal and uninterrupted
enjoyment of his life, his limbs, his body, his health, and his reputation. It includes the
right to exist, and the right to enjoyment of life while existing, and it is invaded not
only by a deprivation of life but also of those things which are necessary to the
enjoyment of life according to the nature, temperament, and lawful desires of the
individual.
[279]
The individual in the state of nature surrendered a portion of his undifferentiated
liberty and agreed to the establishment of a government to guarantee his
natural rights, including the right to security of person and property, which he
could not guarantee by himself. Similarly, the natural right to liberty includes the
right of a person to decide whether to express himself and communicate to the
public or to keep his affairs to himself and enjoy his privacy. Justice Douglas
reminds us of the indispensability of privacy in the Hayden case, thus: Those
who wrote the Bill of Rights believed that every individual needs both to
communicate with others and to keep his affairs to himself. A natural right to
liberty indubitably includes the freedom to determine when and how an
individual will share the private part of his being and the extent of his
sharing. And when he chooses to express himself, the natural right to liberty
demands that he should be given the liberty to be truly himself with his family in
his home, his haven of refuge where he can retreat from the cares and
pressures, even at times the oppressiveness of the outside world, to borrow the
memorable words of Chief Justice Fernando. For truly, the drapes of a mans
castle are but an extension of the drapes on his body that cover the
essentials. In unreasonable searches and seizures, the prying eyes and the
invasive hands of the government prevent the individual from enjoying his
freedom to keep to himself and to act undisturbed within his zone of
privacy. Finally, indispensable to the natural right to property is the right to ones
possessions. Property is a product of ones toil and might be considered an
expression and extension of oneself. It is what an individual deems necessary
to the enjoyment of his life. With unreasonable searches and seizures, ones
property stands in danger of being rummaged through and taken away. In sum,
as pointed out in De Los Reyes, persons are subjected to indignity by an
unreasonable search and seizure because at bottom, it is a violation of a
persons natural right to life, liberty and property. It is this natural right which sets
man apart from other beings, which gives him the dignity of a human being.
It is understandable why Filipinos demanded that every organic law in
their history guarantee the protection of their natural right against unreasonable
search and seizure and why the UDHR treated this right as a human right. It is
a right inherent in the right to life, liberty and property; it is a right appertain(ing)
to man in right of his existence, a right that belongs to man by virtue of his nature
and depends upon his personality, and not merely a civil right created and
protected by positive law. The right to protect oneself against unreasonable
search and seizure, being a right indispensable to the right to life, liberty and
property, may be derived as a conclusion from what Aquinas identifies as mans
natural inclination to self-preservation and self-actualization. Man preserves
himself by leading a secure life enjoying his liberty and actualizes himself as a
rational and social being in choosing to freely express himself and associate
with others as well as by keeping to and knowing himself. For after all, a
reflective grasp of what it means to be human and how one should go about
performing the functions proper to his human nature can only be done by the
rational person himself in the confines of his private space. Only he himself in
his own quiet time can examine his life knowing that an unexamined life is not
worth living.
Every organic law the Filipinos established (the Malolos, 1935, 1973, and
1987 Constitutions) and embraced (the Instruction, Philippine Bill of 1902, and
Jones Law) in the last century included a provision guaranteeing the peoples
right against unreasonable search and seizure because the people ranked this
right as fundamental and natural. Indeed, so fundamental and natural is this
right that the demand for it spurred the American revolution against the English
Crown. It resulted in the Declaration of Independence and the subsequent
establishment of the American Constitution about 200 years ago in 1789. A
revolution is staged only for the most fundamental of reasons - such as the
violation of fundamental and natural rights - for prudence dictates that
governments long established should not be changed for light and transient
reasons.
[280]
Considering that the right against unreasonable search and seizure is a
natural right, the government cannot claim that private respondent Dimaano is
not entitled to the right for the reason alone that there was no constitution
granting the right at the time the search was conducted. This right of the private
respondent precedes the constitution, and does not depend on positive law. It
is part of natural rights. A violation of this right along with other rights stirred
Filipinos to revolutions. It is the restoration of the Filipinos natural rights that
justified the establishment of the Aquino government and the writing of the 1987
Constitution. I submit that even in the absence of a constitution, private
respondent Dimaano had a fundamental and natural right against unreasonable
search and seizure under natural law.
We now come to the right to the exclusion of evidence illegally
seized. From Stonehill quoting Mapp, we can distill that the exclusionary rule
in both the Philippine and American jurisdictions is a freedom implicit in the
concept of ordered liberty for it is a necessary part of the guarantee against
unreasonable searches and seizures, which in turn is an essential part of the
right to privacy that the Constitution protects. If the exclusionary rule were not
adopted, it would be to grant the right (against unreasonable search and
seizure) but in reality to withhold its privilege and enjoyment. Thus, the
inevitable conclusion is that the exclusionary rule is likewise a natural right that
private respondent Dimaano can invoke even in the absence of a constitution
guaranteeing such right.
To be sure, the status of the exclusionary right as a natural right is
admittedly not as indisputable as the right against unreasonable searches and
seizures which is firmly supported by philosophy and deeply entrenched in
history. On a lower tier, arguments have been raised on the constitutional status
of the exclusionary right. Some assert, on the basis of United States v.
Calandra, that it is only a judicially-created remedy designed to safeguard
Fourth Amendment rights generally through its deterrent effect, rather than a
personal constitutional right of the party aggrieved. Along the same line,
others contend that the right against unreasonable search and seizure merely
requires some effective remedy, and thus Congress may abolish or limit the
exclusionary right if it could replace it with other remedies of a comparable or
greater deterrent effect. But these contentions have merit only if it is conceded
[281]
[282]
that the exclusionary rule is merely an optional remedy for the purpose of
deterrence.
[283]
Those who defend the constitutional status of the exclusionary right,
however, assert that there is nothing in Weeks that says that it is a remedy or
a manner of deterring police officers. In Mapp, while the court discredited
other means of enforcing the Fourth Amendment cited in Wolf, the thrust of the
opinion was broader. Justice Clarke opined that no man is to be convicted on
unconstitutional evidence and held that the exclusionary rule is an essential
part of both the Fourth and Fourteenth Amendments.
[284]
[285]
[286]
[287]
Formulated in the Aquinian concept of human law, the debate is whether
the exclusionary right is the first kind of human law which may be derived as a
conclusion from the natural law precept that one should do no harm to another
man, in the same way that conclusions are derived from scientific principles, in
which case the exclusionary right has force from natural law and does not
depend on positive law for its creation; or if it is the second kind of human law
which is derived by way of determination of natural law, in the same way that a
carpenter determines the shape of a house, such that it is merely a judicially or
legislatively chosen remedy or deterrent, in which case the right only has force
insofar as positive law creates and protects it.
In holding that the right against unreasonable search and seizure is a
fundamental and natural right, we were aided by philosophy and history. In the
case of the exclusionary right, philosophy can also come to the exclusionary
rights aid, along the lines of Justice Clarkes proposition in the Mapp case that
no man shall be convicted on unconstitutional evidence.Similarly, the
government shall not be allowed to convict a man on evidence obtained in
violation of a natural right (against unreasonable search and seizure) for the
protection of which, government and the law were established. To rule
otherwise would be to sanction the brazen violation of natural rights and allow
law enforcers to act with more temerity than a thief in the night for they can
disturb ones privacy, trespass ones abode, and steal ones property with
impunity. This, in turn, would erode the peoples trust in government.
Unlike in the right against unreasonable search and seizure, however,
history cannot come to the aid of the exclusionary right. Compared to the right
against unreasonable search and seizure, the exclusionary right is still in its
infancy stage in Philippine jurisdiction, having been etched only in the 1973
Constitution after the 1967 Stonehill ruling which finally laid to rest the debate
on whether illegally seized evidence should be excluded. In the United States,
the exclusionary rights genesis dates back only to the 1885 Boyd case on the
federal level, and to the 1961 Mapp case in the state level. The long period of
non-recognition of the exclusionary right has not caused an upheaval, much
less a revolution, in both the Philippine and American jurisdictions. Likewise,
the UDHR, a response to violation of human rights in a particular period in world
history, did not include the exclusionary right. It cannot confidently be asserted
therefore that history can attest to its natural right status. Without the strength
of history and with philosophy alone left as a leg to stand on, the exclusionary
rights status as a fundamental and natural right stands on unstable
ground. Thus, the conclusion that it can be invoked even in the absence of a
constitution also rests on shifting sands.
Be that as it may, the exclusionary right is available to private respondent
Dimaano as she invoked it when it was already guaranteed by the Freedom
Constitution and the 1987 Constitution. The AFP Board issued its resolution on
Ramas unexplained wealth only on July 27, 1987. The PCGGs petition for
forfeiture against Ramas was filed on August 1, 1987 and was later amended
to name the Republic of the Philippines as plaintiff and to add private
respondent Dimaano as co-defendant. Following the petitioners stance upheld
by the majority that the exclusionary right is a creation of the Constitution, then
it could be invoked as a constitutional right on or after the Freedom Constitution
took effect on March 25, 1986 and later, when the 1987 Constitution took effect
on February 2, 1987.
VI. Epilogue
The Filipino people have fought revolutions, by the power of the pen, the
strength of the sword and the might of prayer to claim and reclaim their
fundamental rights. They set these rights in stone in every constitution they
established. I cannot believe and so hold that the Filipinos during that one
month from February 25 to March 24, 1986 were stripped naked of all their
rights, including their natural rights as human beings. With the extraordinary
circumstances before, during and after the EDSA Revolution, the Filipinos
simply found themselves without a constitution, but certainly not without
fundamental rights. In that brief one month, they retrieved their liberties and
enjoyed them in their rawest essence, having just been freed from the claws of
an authoritarian regime. They walked through history with bare feet, unshod by
a constitution, but with an armor of rights guaranteed by the philosophy and
history of their constitutional tradition. Those natural rights inhere in man and
need not be granted by a piece of paper.
To reiterate, the right against unreasonable search and seizure which
private respondent Dimaano invokes is among the sacred rights fought for by
the Filipinos in the 1986 EDSA Revolution. It will be a profanity to deny her the
right after the fight had been won. It does not matter whether she believed in
the righteousness of the EDSA Revolution or she contributed to its cause as an
alleged ally of the dictator, for as a human being, she has a natural right to life,
liberty and property which she can exercise regardless of existing or nonexisting laws and irrespective of the will or lack of will of governments.
I wish to stress that I am not making the duty of the Court unbearably difficult
by taking it to task every time a right is claimed before it to determine whether
it is a natural right which the government cannot diminish or defeat by any kind
of positive law or action. The Court need not always twice measure a law or
action, first utilizing the constitution and second using natural law as a
yardstick. However, the 1986 EDSA Revolution was extraordinary, one that
borders the miraculous. It was the first revolution of its kind in Philippine history,
and perhaps even in the history of this planet. Fittingly, this separate opinion is
the first of its kind in this Court, where history and philosophy are invoked not
as aids in the interpretation of a positive law, but to recognize a right not written
in a papyrus but inheres in man as man. The unnaturalness of the 1986 EDSA
revolution cannot dilute nor defeat the natural rights of man, rights that antedate
constitutions, rights that have been the beacon lights of the law since the Greek
civilization. Without respect for natural rights, man cannot rise to the full height
of his humanity.
I concur in the result.
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